(Judgment of the Court was made by F.M.IBRAHIM KALIFULLA,J.) The issue raised in this writ appeal is covered by the I-Bench decision of this Court, to which one of us (F.M.IBRAHIM KALIFULLA,J.) was a party.
2.The legal question raised in this writ appeal is that when pre-revision notice, dated 16.02.2005, was issued to the appellant, the appellant submitted his objections, dated 10.03.2005. Among other objections, the appellant also specifically pleaded for a personal hearing before passing final orders. The grievance of the appellant is that without affording such an opportunity of personal hearing, by order dated 04.05.2006, the 4th respondent made the Revised Assessment Order by merely referring to the objections of the appellant and stating that such objections were not tenable.
3.On the above basis, Mr.Mohammed Ibrahim Ali, learned counsel for the appellant, contended that in respect of such a stand, the issue came to be considered by the I-Bench of this Court in the decision reported in 2008-09(14) TNCTJ 220 - Tvl.SRC Projects Pvt. Ltd. vs. The Commissioner of Commercial Taxes and another. In the said decision, the First Bench, in paragraph Nos.22, 24 and 27 of its judgment, has held as under. "22.This Court, therefore, holds that the provision of Section 16(1)(a) of the said Act has to be construed in accordance with the said Circular which is by way of contemporanea exposito. So when a specific demand is made for personal hearing the reasonable opportunity of showing cause should include the same in the interest of fairness in procedure.
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24.It is well settled that the existence of an alternative remedy does not oust the jurisdiction of a writ court under
Article 226 of the Constitution. Such jurisdiction is plenary in nature. But the existence of alternative remedy operates as an automatic restrain on the discretion of the writ court in the exercise of its jurisdiction. But law in this aspect is well settled and there are well known exceptions where a writ petition is entertained despite non- exhaustion of statutory remedy. If any one of the exceptions exists, it is open to the writ court to exercise its jurisdiction. Those exceptions are if a writ petition has been filed for an enforcement of any fundamental right where there has been a violation of principles of natural justice at the instance of an inferior authority or where the proceedings are wholly without jurisdiction or ultra vires the statute under which such proceedings have been initiated (see Whirlpool Corporation v. Registrar of Trade Marks, 1998(8) SCC page 1 at paragraphs 14 & 15. Pages 9 & 10 of the report), a writ petition can be entertained.
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27.We also hold, in the facts and circumstances of this case, the impugned order by way of revision of assessment should not have been passed without giving the assessee an opportunity of personal hearing. But since the same has been denied, the impugned order is hereby quashed."
4.Applying the above said ratio to the facts of the present case, we have no hesitation in holding that the 4th respondent was not justified in passing the impugned order of revised assessment, dated 04.05.2006, without giving an opportunity of personal hearing to the appellant. We, therefore, set aside the order impugned in the writ petition and direct the 4th respondent to give one opportunity of personal hearing to the appellant by specifying the date of hearing by giving advance notice, atleast ten days prior to such date of hearing. It is made clear that if such a hearing is fixed and intimated, the appellant should appear before the 4th respondent and avail the opportunity of personal hearing. Inasmuch as the revision of assessment relates to the Assessment Year 1999-2000, it is imperative that the appellant should appear on the date fixed by the 4th respondent without seeking for any adjournment to enable the 4th respondent to pass order in accordance with law. If the appellant fails to avail such an opportunity of personal hearing, the 4th respondent will be at liberty to pass final orders.
5.Accordingly, the writ appeal stands disposed of. No order as to costs. Connected M.P.(MD)No.1 of 2009 is also dismissed.
gb To:
1.The Secretary to Government, Government of Tamilnadu, Commercial Tax Department, Fort St.George, Chennai-9.
2.The Special Commissioner and Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai-600 005.
3.The Deputy Commissioner (C.T.), C.T.Building, Reserve Line Road, Palaymkottai, Tirunelveli.
4.Deputy Commercial Tax Officer-I, Sivakasi-1, Virudhunagar District.