Already existing remedy, ground to dismiss Writ? Supreme Court of India

Dismiss Writ

The Supreme Court of India pronounced a judgement on 1st February 2023 in the case titled “M/s. Godrej Sara Lee Ltd. v. The Excise and Taxation Officer Cum Assessing Authority and Ors.” wherein an appeal was filed in the Hon’ble Court against the order of dismissal of the writ by the High Court.

The article states the facts, contentions of the parties, issues and the judgement passed in the case to provide a better knowledge and understanding of certain provisions laid down under statutes in India.

Facts of the case:

  • The assessee is involved in the business of selling household products related to insecticides. The products are in the form of coils, baits, chalks, mats, etc, with the very famous brand named “Hit” and “Goodnight”.
  • The assessee paid the tax returns of the revenue generated from the sales of insecticides (under Schedule C Entry 67) on time for the years 2003-2004 and 2004-2005. The returns were duly accepted by the Assessing Authority at the rate of 4% as per the prevailing law at that time.
  • The Assessing Authority vide order dated 28th February 2007 with regards to tax returns filed at the rate of 4% was correct as the amendment in the schedule took place on 30th June 2005 after the returns were already paid for previous years. As per the general rule, any amendment made does not have a retrospective effect on the acts completed before such amendment.
  • The Revisional Authority questioned the orders passed by the Assessing Authority on the grounds of certain illegalities through the exercise of suo moto power given under Section 34 of the Act. The said authority passed an order in the year 2009 for payment of taxes @ 10% instead of 4% as they considered the products of the assessee to be unscheduled goods and subject to the tax rate of 10%.
  • Assessee contented that the products contained a certain percentage of insecticides which does not make them unscheduled goods and make them a part of goods under the category of insecticides. Also, in the case of M/s Balsara Hygiene Products Ltd. Kundli (Sonepat) vs State of Haryana, the Tribunal held that these products come into the category of insecticides. The Assessing Authority, after considering the decision of the Tribunal, again confirmed the tax paid @4% was correct. The Assessing Authority was bound by the decision of the Tribunal, and the Revisional Authority should have also followed the decision made by the Tribunal as per the principles of judicial discipline.
  • The writ was filed by the Assessee under the Hon’ble High Court, challenging the order passed by the Revisional Authority and for restoration of the order passed by the Assessing Authority. The Hon’ble High Court did not consider the writ as the Act provided a right to appeal under Section 33 of the Act[1], which was not exercised by the Assessee. 
  • Thus, the assessee moved to the Supreme Court to challenge the order passed by the High Court for dismissal of the writ petition filed and relegating the parties to seek redressal under Section 33 through the way of appeal.
READ  Premium on Redemption of Preference Shares Is Not Accruable Interest

Issues of the Case

  • Whether the Revisional Authority has the power to take the matter suo moto as per the provision mentioned under Article 34 and whether the High Court had the power to quash the writ petition on the grounds that an already existing alternative remedy was available under Section 33 to the Assessee which was not pursued by him.


The Hon’ble Supreme Court considered the appeal and stated that the High Court was not justified by declining the writ petition filed before it only on the ground that an alternative remedy was available to the appellant under certain exceptional situations. The Court laid down certain exceptions when the writ petition is maintainable even if the alternative remedy is not exhausted, which has been already provided by the statute.

The Supreme Court, in the case of Whirlpool Corporation vs Registrar of Trade Marks, Mumbai and Others, stated the exceptions where the Court can entertain a writ petition despite the fact that the party has not availed the existing alternative remedy mentioned in the Act. The exceptions are:

  • When the writ is filed specifically for enforcement of fundamental rights provided in the Indian Constitution;
  • When the principles of natural justice are being violated;
  • When the authority passing the order or conducting proceedings has no jurisdiction to do so;

Also, the question was whether the power exercised by the Revisional authority was valid involving the question of law and not based upon the facts of the case. Thus, the assessee sought relief as to the question of law, which was to be decided by the competent court (here, High Court). The High Court should not have dismissed the petition under exceptional circumstances. The Hon’ble Supreme Court set aside the impugned order given by the High Court.

READ  SC’s Recent Judgment on Revaluation of Capital Assets

The Supreme Court had the option to remand the case to the High Court, but judges considered the time approximately 14 years since the High Court passed the orders. The court, in order to serve justice and not delay the case, heard both parties and passed the order.

As far as the suo moto power of the Revisional Authority is concerned, the authority, as per Section 34, can only exercise its power when it is found that the order passed by the subordinate authority is illegal. The proviso clause lays down certain restrictions as to when the Authority cannot exercise such power. One such restriction is when the matter is pending or has already been settled by the Appellate Authority. In the present situation, the matter was already settled by the Tribunal, being an appellate authority under Section 2 of the VAT Act, and it was nowhere found that the orders passed by the Assessing Authority suffered patent illegality.

Thus, the powers exercised by the Revisional Authority had been justified if the decision made by the Tribunal was set aside. So far, the tribunal’s order was not challenged. The same remained operative. The Revisional Authority had to follow the orders passed by the Tribunal as the Assessing Authority followed.

Therefore, the Hon’ble Supreme Court quashed the challenged orders passed by Revisional Authority dated 2nd March 2009.


The judgement passed by the Hon’ble Court focused on certain aspects, such as wrongful dismissal of the writ petition filed before the High Court on the grounds that there is an already existing remedy under the Act, the exercise of Suo moto powers by the Revisional Authority powers under Section 34 of the Act. The Court also laid emphasis on the difference between “maintainability” and “entertainability” of the writ petition. The aspect of maintainability depends upon the root of the matter, whereas writ being discretionary in nature, depends upon the discretion of the court to entertain such petition or not.

READ  Legal Expenses Allowed As Business Expenditure under Section 37 of IT Act

Read Also: How to File an Income Tax Appeal with ITAT?

Trending Posted

Get Started Live Chat