JUDICIAL REVIEW IN TAX MATTERS: THE DOCTRINE OF ALTERNATIVE REMEDY AND ITS EXCEPTIONS

Abstract

The power of judicial review vested in the Supreme Court under Articles 32 and 136, and in the High Courts under Article 226 of the Constitution, extends to the review of legislative enactment, administrative action and the orders of quasi-judicial authority, including in fiscal matters. This paper examines how Indian courts have applied that power specifically to tax disputes, where the doctrine of alternative remedy, the principle that a High Court should ordinarily decline to entertain a writ petition where an effective statutory remedy exists, has been applied with particular rigour on account of the revenue's interest in the prompt and orderly recovery of tax. Tracing the doctrine from Assistant Collector of Central Excise v. Dunlop India Ltd. through Whirlpool Corporation v. Registrar of Trade Marks to the Supreme Court's recent clarification in Godrej Sara Lee Ltd. v. Excise and Taxation Officer, the paper distinguishes the question of a writ petition's maintainability from the analytically distinct question of its entertainability, and examines the recognised exceptions to the alternative remedy doctrine: want of jurisdiction, breach of natural justice, and challenge to the vires of the statute itself. It further examines the particular difficulty that arises where an assessee's appeal has become time-barred under a fiscal statute, contrasting the Supreme Court's approach in Glaxo SmithKline Consumer Health Care Ltd. with the High Courts' continuing willingness to exercise writ jurisdiction under Article 226 where sufficient cause for delay is shown but no statutory power of condonation extends to the case. The paper argues that judicial review in tax matters, properly exercised, functions not as a device for circumventing the statutory appellate hierarchy Parliament has established, but as a residual constitutional safeguard against jurisdictional excess and denial of natural justice that the ordinary statutory remedy cannot adequately address.