K.S. Jhaveri, J. - (1.) We have heard counsel for the parties.
(2.) Mr. R.D. Rastogi, ASG has relied upon the following decisions :- 1. In Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. reported in (2004) 3 SCC 440 = 2004 (164) E.L.T. 141 (S.C.), it has been held as under :- 5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, not granted. 2. In Commissioner of Income Tax and Ors. v. Chhabil Dass Agarwal -(2014) 1 SCC 603, it has been observed as under :- 5. The facts in brief are: The Assessee is a Sikkim based non-Sikkimese who had filed his first return of income for Assessment Year 1997-1998. Upon assessment, it was discovered that he had a net profit of Rs. 5,78,832/- during the Assessment Year 1996-1997 relevant to the Assessment Year 1995-1996. Since no return was filed by the Assessee for the Assessment Year 1996-1997 despite capitalizing the aforesaid profit, proceedings under Section 147 of the Act were initiated against him for the said Assessment Year. Accordingly, on 26-5-1998 the notice was issued under Section 148 of the Act. Further, the Revenue has found out that as on 31-31996 the Assessee had brought forward closing capital of Rs. 1,73,90,397/-including the aforesaid net profit during the Assessment Year 1996-1997. The same remained unexplained as the return of income for Assessment Year 1995-1996 was also not furnished by the Assessee. Hence, another notice under Section 148 was issued to the Assessee for the Assessment Year 1995-1996, dated 30-3-2000. It has come on record that the Assessee did not comply with the aforesaid notices issued under Section 148 of the Act and thus, a letter dated 19-1-2001 came to be issued to the Assessee as a reminder to file his return of income for the assessment years clearly mentioning that failure to do so would lead to an ex parte assessment under Section 144 of the Act. Thereafter, upon filing of written submissions by the Assessee, notice under Section 142(1) of the Act dated 25-6-2001 was issued for the Assessment Year 1995-1996 along with final show cause fixing compliance for hearing dated 9-7-2001. The Assessee sought for an adjournment which was not granted and the assessments were completed ex parte under Section 144 of the Act raising a tax demand of Rs. 2,45,87,625/- and Rs. 6,32,972/- for Assessment Years 1995-96 and 1996-97, respectively by orders dated 9-7-2001 and 28-32001, respectively. Further, penalty proceedings under Section 271(1)(c) of the Act were also initiated for both Assessment Years.
(3.) In Authorized Officer, State Bank of Travancore and Anr. v. Mathew K.C. Civil Appeal No. 1281/2018, decided on 30-1-2018, it has been observed as under :- 11. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding : 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction Under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection. 3. Mr. Ranka Counsel for the respondent has relied upon the following decisions :- 1. In Commissioner of Income Tax and Ors. v. Chhabil Das Agarwal -(2014) 1 SCC 603, it has been held as under :- 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 20. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the Assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana - (1985) 3 SCC 267 this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the Assessee-writ Petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. 21. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the Assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon. 22. In view of the above, we allow this appeal and set aside the judgment and order passed by the High Court in Writ Petition (Civil) No. 44 of 2009. 2. In Raj Kumar Shivhare v. Asst. Director, Directorate of Enforcement -(2010) 4 SCC 772 (SC) = 2010 (253) E.L.T. 3 (S.C.), it has been observed as under :- 19. The word 'any' in this context would mean 'all'. We are of this opinion in view of the fact that this Section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of Statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by Statute, as it is barred here under Section 34 of FEMA, is an inherent right (See Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by Statute. While conferring such right Statute may impose restrictions, like limitation or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise. 20. Under Section 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from 'any' 'order' or 'decision' of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word 'any' would mean 'all'. 26. In the instant case also when a right is conferred on a person aggrieved to file appeal from 'any' order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in our judgment in Section 35 of FEMA, any 'order' or 'decision' of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law. 27. In a case where right of appeal is limited only from a final order or judgment and not from interlocutory order, the Statute creating such right makes it clear [See Section 19 of the Family Courts Act, 1984] which is set out below : 19. Appeal. - (1) Save as provided in Sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) : PROVIDED that nothing in this Sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991] (3) Every appeal under this section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court.] 30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by Parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and Ors. - (1997) 3 SCC 261. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal Statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go bye by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating the aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 35. In this case, liability of the appellant is not created under any common law principle but, it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not maintainable. Again another Constitution Bench of this Court in Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. (1997) 5 SCC 536 speaking through Justice B.P. Jeevan Reddy, delivering the majority judgment, and dealing with a case of refund of Central Excise Duty held : So far as the jurisdiction of the High Court under Article 226 -- or for that matter, the jurisdiction of this Court under Article 32 -- is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. 37. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if High Court had territorial jurisdiction it should not have entertained a writ petition which impugns an order of the Tribunal when such an order on a question of law, is appealable before the High Court under Section 35 of FEMA. 38. Learned Counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan v. Pandit Durga Prasad (D) By Lrs. and Ors. : (2003) 5 SCC 399. Learned Counsel relied on paragraph (13) of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a Statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. However, the aforesaid principle is subject to one exception, namely, where there is a complete lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal acted under a provision of law which is declared ultra vires. In such cases, notwithstanding the existence of such a tribunal, the High Court can exercise its jurisdiction to grant relief. 44. For the reasons discussed above, this Court is of the opinion that a writ petition is not ordinarily maintainable to challenge an order of the Tribunal. We, therefore, dismiss the appeal, of course for reasons which are different from the ones given by the High Court in dismissing the writ petition. 45. In view of this Court's jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of Explanation to Section 35 of FEMA and if such an appeal is filed within a period of thirty days from today, the appellate forum will consider the question of limitation sympathetically having regard to the provision of Section 14 of the Limitation Act and also having regard to the fact that the appellant was bona fide pursuing his case under Article 226 of the Constitution before the Delhi High Court and then its appeal before this Court. 3.1 In Commissioner of Income Tax v. Vijaybhai N. Chandrani - (2013) 14 SCC 661, it has been held as under :- 18. In these appeals the Tribunal and the High Court, after going through the facts and circumstances of each case, have reached the conclusion that the Assessing Authority was not justified in computing the assessments and thereafter fastening liability on the Assessee to pay tax and interest. Since these appeals are primarily decided on facts by the First Appellate Authority, the Tribunal and the High Court, we do not find any substantial question of law which requires to be decided by this Court. 19. We make it abundantly clear that we have not expressed any opinion on the correctness or otherwise of the observations made by the High Court insofar as the interpretation of Section 153C of the Act, 1961 is concerned. The said question is kept open to be agitated in an appropriate matter. ;