SANTALAL MEHENDI Vs. COMMISSIONER OF TAXES

JUDGEMENT

(1.) Heard Dr. A.K. Saraf, learned senior counsel assisted by Mr. S. Saikia, learned counsel for the petitioner. Also heard Mr. N.C. Phukan, learned State counsel.

(2.) The instant writ petition is projected against an order dated 30.4.96 passed by the Deputy Commissioner of Taxes, Tinsukia Zone, Tinsukia in exercise of suomoto revisional powers under Section 36( 1) of the Assam General Sales Tax Act, 1993 (hereinafter referred to as the Act). By order dated 25.4.91, the assessment of the petitioner for the period ending 30.9.$8 was completed by the Assessing Officer under Section 9(4) of the Assam Finance (Sales) Tax Act, 1956. The aforesaid assessment order was passed after taking into consideration the report submitted by the Inspector of Taxes acting under the provisions of the Act. Tax to the extent mentioned in the assessment order was assessed and recovered. Thereafter, it appears that a notice for re-opening the aforesaid assessment under Section 18 of the Act, which had come into operation] in the meantime, was issued to the petitioner on 13.8.93. The petitioner submitted his reply to the said notice on 8.10.93 which was followed by further explanations on 19.10.93. According to the writ petitioner no order was passed by the assessiing Officer on the said proceeding for reopening of the assessment. Thereafter, a notice dated 5.2.96 was issued by the Deputy Commissioner of Taxes, Tinsulkia directing the writ petitioner to show cause as to why the assessment for the period ending 30.9.88 should not be cancelled and fresh assessment be made. The aforesaid notice issued under Section 36(1) of the Act goes on to record that the writ petitioner having concealed the value of 18,16,700 numbers of bricks for the assessment period in question, the assessment order dated 25.4.91 is erroneous in so far as it is prejudicial to the interest of revenue. The petitioner unsuccessfully showed cause against the aforesaid notice. The matter was thereafter adjudicated by the Deputy Commissioner of Taxes, Tinsukia who by his order dated 30.4.96, on the grounds and reasons mentioned, cancelled the assessment ordered on 25.4.91 holding the same to be erroneous in so far as it is prejudicial to the interest of revenue. By the aforesaid order dated 30.4.96, the Deputy Commissioner of Taxes, Tinsukia directed the jurisdictionl Superintendent of Taxes to make a fresh assessment by adding Rs.7,26,780/- to the taxable turn over of the petitioner for the period ending 30.9.1988. It may be noticed at this stage that in the aforesaid order dated 30.4.96 the Deputy Commissioner of Taxes, Tinsukia has recorded that turn over of Rs.7,26,780/- has escaped assessment for the period in question. Aggrieved by the said order, the instant writ petition has been filed.

(3.) Mr. N.C. Phukan, learned State counsel, at the outset has raised an objection that the instant writ petition ought not to be adjudicated on merits inasmuch as under the provisions of Section 33(2)(a) of the Act, the petitioner has his remedy by way of a statutory appeal to the Tribunal. Under Section 5 A of the Act pending constitution of the appellate Tribunal, the appellate power have been vested in the Board of Revenue. According to the learned State counsel the writ petitioner ought to have exhausted the statutory remedy available to him before initiating the present proceeding under Article 226 of the Constitution. I have considered the submission advanced by Mr. Phukan. While Mr. Phukan may be right in his contention that the writ petitioner ought to have exhausted the remedies provided to him by the Statute, it cannot be said that failure to exhaust such statutory or alternative remedies available will act as an ouster of the jurisdiction of the Writ Court. The rule of exhaustion of available alternative remedies is not a rule of law laying down an absolute/inflexible principle. It is rather a rule of convenience and the eventual decision of the writ Court in this regard will have to be taken on a consideration of the totality of the facts of the case. The instant writ petition has remained pending in this Court since 1996. The arguments advanced by the learned counsel for the parties raises a pure question of law. Considering the above, I am inclined to exercise my discretion in favour of an adjudication of the case on merits instead of relegating the writ petitioner to the appellate forum at this belated stage of the present proceeding.