The existence of an alternative statutory remedy usually prevents Courts from entertaining writ petitions to exercise their extraordinary jurisdiction under article 226. This bar prevents multiplicity of proceedings and judicial chaos. However, this bar is not an absolute one. There are some exceptions where despite the fact there may be efficacious alternative remedies available, the Court has the discretion to entertain a writ petition. The Hon'ble Supreme Court in the case of Commissioner of Income Tax & Ors Vs Chhabil Dass Agarwal held :
"15…... It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy.
However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226."
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or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper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." (emphasis supplied)
Thus the exceptions carved out are :
1. Where the statutory authority has not acted in accordance with the enactment in question, or
2. Has acted in defiance of the fundamental principles of judicial procedure
3. Has invoked the provisions which are repealed, or
4. When an order has been passed in total violation of the principles of natural justice
Among all the above exceptions, in taxation the one predominant reason for Courts' intervention usually is the last one appearing at 4 above. The “principles of natural justice” is basic to demonstrate justice has been done. “Audi alterem partem” i.e. “hear both sides” is fundamental to observing the principles of natural justice. If no hearing is granted, or the date of hearing is fixed without giving sufficient notice period, or documents relied upon in the notice have not been shared, or cross-examination of witnesses is not allowed etc. can be sufficient cause for the Courts to intervene.
In one such case recently, the Calcutta High Court in Sadguru Forwarders Pvt Ltd. Vs Commissioner of Customs (Port) Kolkata set aside a Customs Order passed denying cross examination of a witness by the petitioner. The judgement reads :
"Notwithstanding the existence of a statutory alternative remedy, a writ petition is maintainable. It is on a rule of discretion that the Writ Court does not intervene when a statutory alternative remedy is available. However, the existence of statutory alternative remedy is not an absolute bar to the maintainability of the writ petition. A writ petition is maintainable, in the event, the petitioner substantiates that, the impugned order has been passed in breach of the principles of natural justice or in excess of jurisdiction or fundamental rights of the petitioner stand breached or where the vires of the Act is under challenge.
In the present case, the petitioner contends that, the petitioner was denied a right of cross-examination of the witnesses of the prosecution produced in the adjudicating process.
The impugned order at paragraph 28.3 records that, the request for cross-examination of one witness was denied. No reason is given in the impugned order as to why such request for cross-examination was denied. On the ground of no reason itself, the impugned order stands vitiated." (emphasis supplied)
In the interest of preventing taxes locked up in litigation, and in the interest of justice being done and most importantly clogging up the Courts with avoidable petitions, its high time senior tax officers acknowledge the rights of the tax payer and adhere to the principles of natural justice. Quite obviously, this is neither too difficult to understand or observe religiously.