Case Law Details
SC held that We do not think that we can hold that an advance ruling of the Authority can only be challenged under Article 136 of the Constitution before this Court and not under Articles 226 and/or 227 of the Constitution before the High Court. In L. Chandra Kumar v. Union of India and Others (supra), a Constitution Bench of this Court has held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is part of the basic structure of the Constitution. Therefore, to hold that an advance ruling of the authority should not be permitted to be challenged before the High Court under Articles 226 and/or 227 of the Constitution would be to negate a part of the basic structure of the Constitution. Nonetheless, we do understand the apprehension of the Authority that a writ petition may remain pending in the High Court for years, first before a learned Single Judge and thereafter in Letters Patent Appeal before the Division Bench and as a result the object of Chapter XIX-B of the Act which is to enable an applicant to get an advance ruling in respect of a transaction expeditiously would be defeated. We are, thus, of the opinion that when an advance ruling of the Authority is challenged before the High Court under Articles 226 and/or 227 of the Constitution, the same should be heard directly by a Division Bench of the High Court and decided as expeditiously as possible.
The only other question which we have to consider is whether we should entertain this petition under Article 136 of the Constitution or ask the petitioner to approach the High Court under Articles 226 and/or 227 of the Constitution. Article 136 of the Constitution itself states that this Court may, “in its discretion”, grant special leave to appeal from any order passed or made by any court or tribunal in the territory of India. The words “in its discretion” in Article 136 of the Constitution makes the exercise of the power of this Court in Article 136 discretionary. Hence, even if good grounds are made out in a Special Leave Petition under Article 136 for challenge to an advance ruling given by the Authority, this Court may still, in its discretion, refuse to grant special leave on the ground that the challenge to the advance ruling of the authority can also be made to the High Court under Articles 226 and/or 227 of the Constitution on the self same grounds. In fact, in Sirpur Paper Mills Ltd. v. Commissioner of Wealth Tax, Hyderabad [AIR 1970 SC 1520] it has been observed that this Court does not encourage an aggrieved party to appeal directly to this Court against the order of a Tribunal exercising judicial functions unless it appears to the Court that a question of principle of great importance arises. Unless, therefore, a Special Leave Petition raises substantial questions of general importance or a similar question is already pending before this Court for decision, this Court does not entertain a Special Leave Petition directly against an order of the tribunal.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) No. 31543 of 2011
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It is true that, the SC, for reasons given, been reluctant to hold that an advance ruling by the AAR “can only be challenged under Article 136 of the Constitution before this Court and not under Articles 226 and/or 227 of the Constitution before the High Court.”
Nonetheless, with due respect thereto, following thoughts / reservation which keep nagging in one’s mind, craving for a better answer, may be worthwhile for constitutional experts to deliberate on:
Could not ,- having regard to the adverse consequences, impacting the very objective of enactment bringing into being the authority- AAR,- have a different view been taken, as that would help to resolve any point of dispute more expeditiously than otherwise?
Could it not,- more based on the principle of ” ‘balance’ of convenience”, regardless of the merits or otherwise of the rigid view presently taken (technical or hyper-technical by what ever name one may call it), – have been held that this is ‘fit and proper’ case to hold differently; that is, to give precedence to and go by the course of action / remedy as per the Article 136 of the Constitution.
Besides, it may be no less worthwhile for the government to consider whether or not the extant scheme of the provisions on advance ruling require to be suitably amended / modified so that the view taken by the SC does not come in the way of an expeditious resolution and ensuring finality of advance rulings BEING ACHIEVED IN THE SPEEDIEST WAY POSSIBLE.
The apex court‘s opinion clinching the dispute reads thus: “ …when an advance ruling of the Authority is challenged before the High Court under Articles 226 and/or 227 of the Constitution, the same should be heard directly by a Division Bench of the High Court and decided as expeditiously as possible.” Such an opinion has come to be handed down empathising with, and by way of setting at rest, “the apprehension of the Authority that a writ petition may remain pending in the High Court for years, first before a learned Single Judge and thereafter in Letters Patent Appeal before the Division Bench and as a result the object of Chapter XIX-B of the Act which is to enable an applicant to get an advance ruling in respect of a transaction expeditiously would be defeated.”
Be that as it may, the points incidentally arising, on which one is not clear, are briefly these:
1. Is ‘the opinion’ generally binding and expected to be abided by and followed by high courts in all such disputes?
2. Would the extant rules of procedure for courts to follow require any change /modification for putting into effect the said opinion?
3, Is it not ,even after the matter is heard and decided upon by a Division Bench of HC, depending on the nature of the issues in a given case, open to the aggrieved party, to still take up the dispute to the highest court (SC) ? Should that be so, and were to happen, how then the objective of special advance ruling procedure, having the aim of an expeditious settlement of the points raised, be fully met.
May be, these doubts arising impromptu in a common man’s mind, if at all found not unsound or without validity, come to be discussed /debated in legal circles; unless, of course, legal pundits have ready answers up their sleeves.