| COURT: | Bombay High Court |
| CORAM: | G. S. Kulkarni J, M. S. Sanklecha J |
| SECTION(S): | 147, 148 |
| GENRE: | Domestic Tax |
| CATCH WORDS: | Reopening, Writ jurisdiction |
| COUNSEL: | J.D. Mistri, Jitendra Singh, K. Gopal |
| DATE: | June 18, 2014 (Date of pronouncement) |
| DATE: | December 4, 2014 (Date of publication) |
| AY: | 2005-06 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 147: A writ petition is not like an appeal where the assessee has a statutory right to require the Court to entertain the challenge. A writ will be maintained only if the notice is clearly without jurisdiction & not otherwise | |
We would exercise our writ jurisdiction to interdict a proceeding under Section 148 of the Act seeking to reopen an assessment only when the same is clearly without jurisdiction and not otherwise as a matter of self restraint. We are constrained to reiterate the above long settled position of self restraint in exercise of our extraordinary writ jurisdiction only because we have noticed that in a number of cases the petitioners approach us in our writ jurisdiction as though we are an appeal Court and it is their statutory right that the Court must in all cases interfere with reopening of assessment. We trust that henceforth these filters would be kept in mind while seeking to invoke the writ jurisdiction of this Court. However, we wish to make it clear that where ever there is palpable injustice or a notice on the face of it is without jurisdiction or the proceedings leading to disposal of the objections is in breach of natural justice, infringement of fundamental rights or where the constitutionally of statue is challenged, then even in a petition challenging a notice under Section 148 of the Act we would in appropriate cases exercise our writ jurisdiction notwithstanding the availability of an alternative remedy.
Indeed a very good judgement by Bombay high court, after all none can act on any presumption if the very statute bars by limitation of jurisdiction or otherwise.
it is to be noted by tax payers whenever revenue crosses its jurisdictional limits on ROI, the tax payer certainly use Art 226 before High court even directly as there is no bar that one needs to go local statutory appeals procedure is already a laid down law under judicial review.. all that you have to prove that you have a legal interpretation issue, then hon high court just admits; so it is obvious the tax payer definitely have the judicial remedy as delay by going under several departmental need be avoided to save time element as the statutory procedure unduly highly prolonged why some tax payer-people even died by the time correct orders are passed on interpretation of laws, as appellate authorities need not necessary be experts on interpretation of statutes and constitution.
the pur[pose of law none is denied justiciable judgements as the principle is ‘Justice is seemed to have been done’ that view the judge should take before delivering judgement to the best satisfaction of litigant is the basic principle all the more under tax laws as they are created under Art 265, due procedure of law element is vital, no government can violate when so how just some Revenue can?
Natural justice plays much the same part in British law as does , under ‘Due process’ in the US constitution.
In fact, it has a very wide general application in the numerous areas of discretionary administrative power .
Wide powers of state , extensive discretion they confer. It is always possible to require them to be exercised in a manner that is ‘procedural fairness’;
Procedure is not a matter of SECONDARY IMPORTANCE at all to be noted;
Govt power continually grows unabated and more and more drastic;
it is only by procedural fairness that they render tolerable.
A judge of U S Supreme Court said, ‘ Procedural fairness and regularity are of indispensable ESSENCE OF LIBERTY; severe substantive laws can be endured if they are (subject to ) ‘Fair’ and impartially applied’ in Shaughessy v US 345, US 206 (1953)(Jacson. J.):
In McNabb , 318, US 332(1943) (Frankfurter..J) observed…’ The history of liberty has largely been the history of observance of Procedural safeguards;’
British judges in devising procedural (remedies) safeguards is the theme of Administrative law. Now supplemented by European convention of Human Rights Act 1998 has legal effect under the said Act – Procedural protection’ is essentially judicial achievement.
Lawyers are proceedurally minded race, and is is natural that the administration should be tempted to regard ‘procedural restriction’ , invented by Lawyers as an additional ‘obstacle’ to (administrative) efficiency.
It is true. ‘Rule of Natural justice’ restrict the freedom of administrative action; and that their observance costs a certain amount of time and money ;
But time and money are likely to be well spent if they reduce friction between the administrative machinery of the government; it is because they are essentially rules for upholding ‘fairness ‘ and so rendering grievances that the natural justice can be said to promote ‘efficiency’ rather than impede it; – ‘provided that the courts do not let them run riot , and keep them in touch with the Standards which good government administration deemed in any case to CARE , this should be regarded as a protection not only to citizens but also to officials of administration;
– ‘Decision made without Bias and with proper consideration of views of those affected by it, will not only be more acceptable ; it would also be better quality of administration’ thus judicial efficiency will go hand in hand so long as the law does not impose Executive refinement;
It needs to be noted ‘power to act’ as administrator thinks fit does not allow a public authority to act unreasonably (wednesbury principle) or in bad fsith, so it it does not allow disregard of theelementary doctrines of fair procedure’. Lord Selborne observed:
‘ These would be no decision within the meaning of the statute if they were anything of that sort done contrary to the essence of justice’ (Spackman vPlumstead district Bd. of Works (1885) 10 App. cas 229 at 240)
Quoting PC these words has said that ‘ it has long been settled law’ that decision which offends against principles of Natural justice’ is outside the jurisdiction of the decision msaking authority,(AG v Ryan (1980)AC 718 – Even the order of superior court may be set aside for violation of natural justice: Isaccs v Robertson (1985)AC 97 …Lord Russell has said Fairmount investments Ltd v secretary of state for environment (1976)1 WLR 1255 at 1263…see Ridge v Baldwin (1964)AC 40 at 80 (‘ a decision given without regard to the principles of natural justice is VOID'(Ld. Reid…..as follows:
‘ It is implied , unless the contrary appears, that the parliament does not authorize by the Act ‘the exercise of powers in breach of principles of natural justice’, and the Parliament does by the Act require in the particular procedures, compliance with the principles’;
Thus violation of natural justice makes the decision VOID, as in any other case of U;tra vires. (Seeagn Ridge vBaldwin brought with it a rash of conflicting Opinions about whether failure to give a fair hearing rendered the dismissal of Chief constableble of North Wales police v Evans(1982) 1 WLR 1155;