TaxTMI 
TaxTMI 
2014 (1) TMI 414
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....rvice Licence (UASL) in their respective licensed service areas. Appellants have established telecommunication towers and other hardwares and softwares across the country for UASL service. (b) They have registered themselves under the Tamil Nadu General Sales Tax Act, 1959 (TNGST Act) for carrying on internet service in the State of Tamilnadu. (c) The appellants have entered into a Business Transfer Agreement on 14.1.2010 with the Chennai Network Infrastructure Limited by which the appellants have sold the undertaking to M/s.Chennai Network Infrastructure Limited as a going concern by means of a slump price. The sale consideration was fixed at Rs.772 crores in the case of M/s.Aircel Limited, and Rs.1557 Crores in the case of M/s.Dishnet Wireless Limited. (d) The Commercial Tax Officer issued a notice to the appellants on 19.7.2013 calling upon them to show cause as to why the entire sale value of the assets should not be assessed at 12.50% for the assessment year 2010-2011. A detailed objection was submitted by the appellants on 30.8.2013 contending that by the Business Transfer Agreement dated 14.1.2010 the appellants transferred only the passive infrastructure to transferee Co....
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....w pending before the Appellate Deputy Commissioner at the instance of M/s.Aircel Cellular Limited on similar grounds and therefore the orders challenged before the learned single Judge are appealable orders before the very same Appellate Authority and contended that the Appellate Deputy Commissioner will definitely appreciate the contentions of the writ petitioners, if appeals are filed. 5. The learned single Judge, accepting the said submission of the learned Advocate General and relying upon various decisions of the Hon'ble Supreme Court held that the transaction in question i.e, the Business Transfer Agreement and primary document, which were taken into account by the Assessing Authority to determine the taxable turnover by including the sale value, should be considered by the appellate authority before whom the very same issues are pending and there cannot be any piecemeal consideration of the matter by the Appellate Authority as well as by this Court. 6. Mr.R.Natarajan, learned Senior Counsel appearing for the appellant in W.A.No.2408 of 2013 raised the very same contentions raised before the learned single Judge and submitted that the first respondent has no jurisdiction to....
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....ent jurisdiction. 11. It is not in dispute that the very same issue is already pending before the Appellate Authority as pointed out by the learned single Judge in his order. Therefore, it is not appropriate for this Court to entertain the writ petitions, when connected matter is pending with the Appellate Authority. Further, there are disputed questions of facts in these cases and only if appeals are filed, the Appellate Authority will be in a position to appreciate the facts and give a finding on facts. This Court, sitting under Article 226 of the Constitution of India, cannot appreciate the factual aspects, unless the same is proved before the appropriate fact finding forum. 12. The grievance of the appellants are that the Assessing Officer has not given any reason. The said plea can also be raised before the Appellate Authority, who is bound to consider the same before deciding the appeals, including the jurisdictional aspect. 13. When the facts are in dispute, the writ petition filed under Article 226 of the Constitution of India is not maintainable. The said issue is no longer res integra. In the decisions reported in (2006) 9 SCC 256 (Himmat Singh v. State of Haryana) and....
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.... Court held that where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. All these decisions are related to taxing statutes, like the present case. (d) It is well settled by a series of decisions of the Supreme Court that particularly in tax matters there should be no short circuiting of the statutory remedies, vide Titaghur Paper Mills Co. Ltd. v. State of Orissa - AIR 1983 SC 603, Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited, 1985 (19) E.L.T. 22 (SC) = AIR 1985 SC 330, etc. (e) It is well settled that when there is an alternative remedy, ordinarily writ jurisdiction of this Court under Article 226 of the Constitution, should not be invoked. This principle applies with greater force regarding tax proceedings as observed by the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa - AIR 1983 SC 603: "Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." (f) In Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited (198....
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....In the said judgment, non-availing of statutory remedy under Section 35 of the FEMA Act was taken note and held that the writ petition filed was not maintainable. (j) In W.P.No.981 of 2003 (Tax) (M/s.Khandelwal Soya Industries Ltd. v. State of U.P. and others) decided on 27.8.2003 a Division Bench of the Allahabad High Court dismissed a writ petition challenging the provisional assessment orders under the U.P.Trade Tax Act on the ground of alternative remedy under Section 9 of that Act. Against the aforesaid judgment, Special Leave Petition was filed before the Supreme Court, which was also dismissed. We respectfully agree with the view taken by the Allahabad High Court in the aforesaid decision. 15. In the decision reported in AIR 2008 SCW 1815 (C.C.T., Orissa v. Indian Explosives Ltd.) the Hon'ble Supreme Court cautioned the High Courts not to entertain writ petitions before exhausting the alternate remedies. Same is the view taken by the Division Bench of this Court in the decision reported in (2009) 22 VST 134 (Mad) (Chopard Builders Ltd. v. Deputy Commercial Tax Officer, Coimbatore). The said position is reiterated in the decision reported in (2012) 11 SCC 651 (Union of Indi....