TaxTMI 
TaxTMI 
2008 (6) TMI 561
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....ioner of Commercial Taxes-III, Chennai, within thirty days of receipt of the order. But the petitioner challenged the said assessment orders without availing the alternative remedy as stated in the impugned order on the ground that principles of natural justice are violated by the respondent while passing the impugned orders of assessment. The case of the petitioner in all these petitions is that the petitioner is a public limited company, incorporated under the Companies Act, 1956, registered on the file of the respondent both under the Tamil Nadu General Sales Tax Act, 1959 and the Central Sales Tax Act, 1956. The petitioner is having the registered office inside the State of Tamil Nadu at No. 4, 8th Floor, Jhaver Plaza, 1A Nungambakkam High Road, Chennai-34, and head office at No. 18, Nagarjuna Hills, Panjagutta, Hyderabad-82. According to the petitioner, it is engaged in the trading activity of iron and steels and also Padmini brand fans. It is claimed that during the course of the business, the petitioner-company purchased iron and steels from the local registered dealers and claimed exemption on their second sales, within the State of Tamil Nadu. Insofar as the Padmini bran....
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....51,305 was proposed to be disallowed and the petitioner is liable to pay tax at four per cent. Another revised notice was also issued on November 26, 2007 and the petitioner was called upon to file its objection. According to the petitioner, for the abovesaid notices, objections were filed and it is further stated that the newly appointed consultant could not reply properly and therefore the respondent confirmed the proposal, by order dated December 7, 2007 demanding Rs. 14,09,13,503; order dated December 24, 2007 demanding Rs. 27,74,19,671; and order dated April 29, 2008 demanding Rs. 12,04,10,462, respectively, towards tax as well as penalty. According to the petitioner, the three dealers, who sold the iron and steel to the petitioner are having their registration and the finding given by the respondent that they are nonexistent entities cannot be sustained. It is also stated in the affidavit that even assuming that the tax is not paid on first sale, the same cannot be the reason to demand tax from the petitioner, who is doing second sale. The respondent has filed counter-affidavit by stating that as against the assessment orders, which are impugned in these writ petitions, the d....
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....court to sustain his contention that even without resorting to appeal remedy, the writ petition filed is maintainable. The learned Additional Government Pleader submitted that adequate opportunity was given to the petitioner and if the petitioner has got any document to prove its case the same can be produced before the appellate authority, who will be in a position to render a finding. There is no controversy with regard to the maintainability of the writ petition though alternative remedy is available, and it depends upon the facts of each case and it is a rule of discretion/convenience. In this case, the facts are disputed by the respondent in the counter-affidavit and records are to be perused to find out as to whether the three companies, who allegedly supplied iron and steel to the petitioner-company as second sale were in existence; any sale transaction was effected by the said three companies; whether the petitioner-company received the iron and steel materials from undisclosed sources or from their company's factory at Andhra Pradesh; and whether the petitioner-company fabricated the records, etc. As against the petitioner, the Enforcement Wing also initiated proceed....
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.... such other orders as he may think fit; or (b) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal against an order of the assessing authority, the assessing authority shall have the right to be heard either in person or by a representative." From the perusal of the above provision it is evident that the Appellate Assistant Commissioner is empowered to confirm, reduce, enhance or annul the assessment or the penalty or both; set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or pass any order as he may think fit. It is also stated that the appellant is entitled to be heard either by person or by a representative. In view of the said power available to the Appellate Assistant Commissioner, the petitioner can re-argue the matter including raising of factual aspects, which can be verified by the appellate authority. It is wellsettled in law that the disputed facts cannot be decided in a writ petition as held in the decision Himmat Singh v. State of Haryana reported in [2006] 9 SCC 256. In yet another decision Food Corporation of India v. Harme....
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....ngs. As observed by the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); 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.' 7.. A Constitution Bench of the Supreme Court in G. Veerappa Pillai v. Raman and Raman Ltd. AIR 1952 SC 192 held that as the Motor Vehicles Act is a self-contained code and itself provides for a forum for appeal/revision, the writ jurisdiction should not be invoked in matters relating to its provisions. A similar view was taken in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. [1985] 19 ELT 22 (SC); AIR 1985 SC 330. 8.. In Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. [1985] 19 ELT 22 (SC); AIR 1985 SC 330, the Supreme Court observed: 'In Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603 A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the prescribed authority, a seco....
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....ion of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a petition under article 226 of the Constitution unless there are good grounds to do otherwise. 12.. In A. Venkatasubbiah Naidu v. S. Chellappan [2000] 7 SCC 695 (vide para 22) the Supreme Court deprecated the practice of exercising the writ jurisdiction when an efficacious alternative remedy is available. 13.. In W.P. No. 981 of 2003 (Tax) (Khandelwal Soya Industries Ltd. v. State of U.P.) decided on August 27, 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 has been dismissed. We respectfully agree with the view taken by the Allahabad High Court in the aforesaid decision. 14.. We are therefore surprised that the writ petition was entertained at all by this court." Same is the view taken by different Division Benches of this court in Sharda Industries v. Commercial Tax Officer (W.A. Nos. 1555 to 1557....