2022 (5) TMI 199 - HC - VAT and Sales Tax

Writ petition dismissed for delay, alternate remedy available under TNVAT Act, failure to participate actively.

The court dismissed the writ petition due to unexplained delay, availability of alternate remedy under Section 51 of TNVAT Act, and petitioner's failure ... Maintainability of petition - deemed assessment - large scale purchase omissions - Section 27 of TNVAT Act - HELD THAT:- In the case on hand, the writ petitioner has approached this Court nearly two years after the impugned order. The impugned order is dated 14.01.2020, it has admittedly been served on the writ petitioner in February 2020 (though the exact date is not readily available with the learned counsel) but the writ petition has been filed only on 04.01.2022. This delay remains unexplained (other than faintly saying that there was Corana Virus pandemic). This is hardly an explanation as the Court continued to function over the last two years in virtual, hybrid and some time personal modes also. This Court is also of the considered view that a tax liability case cannot be kept lingering in the first tier before assessing officer when a writ is filed two years post impugned order and when delay remains unexplained. The sequitur is captioned writ petition fails and the same is dismissed. Issues Involved:1. Adherence to JKM Graphics principle.2. Opportunity for cross-examination and document supply.3. Delay in filing the writ petition.4. Availability of alternate remedy under Section 51 of TNVAT Act.5. Personal hearing requirement under Section 27 of TNVAT Act.Issue-wise Detailed Analysis:1. Adherence to JKM Graphics principle:The petitioner argued that the JKM Graphics principle was not adhered to, as the particulars of the dealers at the other end were not compared, resulting in a mismatch between Annexure-I and Annexure-II. The court noted that the petitioner only sent a terse reply to the pre-revision notice without any enclosures and did not respond to subsequent notices or attend the personal hearing. The court distinguished the present case from JKM Graphics, stating that the petitioner did not provide sufficient information or participate in the process, unlike in JKM Graphics where the purchasing dealer could establish the genuineness of the transaction through proper enquiry.2. Opportunity for cross-examination and document supply:The petitioner claimed they were not given an opportunity to cross-examine the dealers at the other end and that documents were not supplied. The court observed that the petitioner did not request cross-examination or submit any enclosures with their reply to the pre-revision notice. Additionally, the petitioner failed to respond to subsequent notices and did not attend the personal hearing. The court found that the petitioner had ample opportunities to present their case but failed to do so.3. Delay in filing the writ petition:The court noted that the impugned order was dated 14.01.2020 and served on the petitioner in February 2020, but the writ petition was filed only on 04.01.2022. The petitioner vaguely cited the COVID-19 pandemic as the reason for the delay, which the court found insufficient. The court emphasized that the court continued to function in various modes during the pandemic, and the delay remained unexplained.4. Availability of alternate remedy under Section 51 of TNVAT Act:The court highlighted that the petitioner had an alternate remedy by way of a statutory appeal under Section 51 of the TNVAT Act. The court reiterated the principle that the alternate remedy rule should be strictly enforced, especially in fiscal statutes, as established by the Supreme Court in cases like Dunlop India, Satyawati Tandon, and K.C. Mathew. The court found no tenable reason for the petitioner to bypass the statutory appeal and approach the court directly.5. Personal hearing requirement under Section 27 of TNVAT Act:The court referred to its previous decision in the SBI Officer's Association case, which held that a personal hearing is not statutorily imperative under Section 27 of the TNVAT Act, as long as sufficient opportunity to show cause is provided. In this case, the Assessing Officer offered a personal hearing, which the petitioner did not avail. The court found that the petitioner had ample opportunities, including a personal hearing, but failed to utilize them.Conclusion:The court concluded that the writ petition was not fit for interference in writ jurisdiction due to the unexplained delay, availability of alternate remedy, and the petitioner's failure to utilize the opportunities provided. The writ petition was dismissed, along with the connected WMP, with no order as to costs.