TaxTMI 
TaxTMI 
2016 (7) TMI 77
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....hey have reported a total and taxable turnover of of Rs. 57,07,41,717 and Rs. 56,95,31,912 respectively claiming an exemption of Rs. 12,09,805/- in their monthly return filed in Form I under the Tamil Nadu Value Added Tax Act for the year 2011-12 before the department. Their accounts was assessed under the deemed assessment scheme under Section 22(2) of the Act as on 31.10.2012. In view of stock discrepancies found by the enforcement officials, during their inspection, the first respondent proposed to revise the assessment of the dealer for the year 2011-12. After considering the objections of the dealer and affording personal hearing, proposals furnished in the Office Note dated 30.7.2015 were confirmed determining the total tax due as Rs. 1,97,99,199/- and penalty at 150% as Rs. 1,45,99,581 by virtue of the impugned proceedings. 3. Mr.P.Rajkumar, learned counsel appearing for the appellant, would submit that the first respondent merely following the report of the second and third respondents with regard to the alleged excess stock of manufactured goods by adopting the formula based on the money value arrived at the sale value of Rs. 3,96,97,406/- and added equal amount towards p....
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....rit Court dismissed the Writ Petition with an observation that it is open to the petitioner to challenge the impugned order before the appellate authority. 8. Aggrieved by the aforesaid order, the appellant has preferred the above Writ Appeal on the following grounds:- (i) The alleged stock variation arrived by the inspecting officials based on the money value is erroneous. (ii) The Assessing Authority took the decision by following a report received from the second and third respondents without applying his mind independently. (iii) Without considering the objections dated 2.9.2016 filed along with documents by the appellant, the Assessing Authority passed the impugned order confirming his proposal, for the reason that correct figures were not produced before the inspecting officials. (iv) Adopting formula methodology in terms of money value is contrary to the decisions of the High Court. 9. In support of the contention of the appellant, the following decisions have been relied on by the appellant to a proposition that a quasi-judicial authority is expected to apply independent mind without being influenced by the report of higher officials:- (i) K.S.Shivaji & Co. Vs. ....
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....ate before the Assessing Authority. After considering the objections of the appellant/writ petitioner, the Assessing Authority passed the detailed impugned order by rejecting the objection of the appellant. Further, he would submit that Assessing Officer had passed the impugned order only on the basis of the independent decision, not on the basis of any direction or report issued by the enforcement wing officials. Therefore, the contention of the appellant cannot be countenanced. The Assessing Authority had given sufficient opportunity to the appellant under the provisions of the Tamil Nadu Value Added Tax Act. Further, it is not the case of the appellant that the first respondent has violated any provisions of the TNVAT Act. If the appellant is aggrieved by a detailed order passed by the Assessing Authority, the appellant is having efficacious alternative remedy against the order passed under the Act. Therefore, challenging the impugned Assessment Order bypassing the alternative remedy is not at all maintainable under Article 226 of the Constitution of India before this Hon'ble Court. 12. The facts raised by the appellant are disputed facts. Therefore, the following decisions....
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....t assessee should have placed all facts before the Enforcement Officers. There is no independent application of mind by the Assessing Officer. As far as the present case is concerned, objections were considered and reasons were assigned by the Assessing Officer for rejection in the impugned order. Assessee failed to place details even before the Officer concerned. Therefore, the impugned order passed by the first respondent on the basis of the available materials by applying independent application of mind. Hence, the contention of the petitioner cannot be countenanced. (vi) In the case of Steel Authority of India Ltd., vs. Sales Tax Officer, Rourkela-I Circle and others, reported in [2008] 16 VST 181 (SC), cryptic order was passed by the first appellate authority. No proper reasoning for rejection of objections raised by the assessee can be found in the impugned order. As far as the present case is concerned, the respondent has passed the impugned order with reasons. The dispute is as to whether such reasoning is correct or not which should be agitated through appeal. (vii) In the Case of Concept and Devices vs. State of Tamil Nadu reported in [2010] 29 VST 41 (Mad), decision re....
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....hority. 13. Heard Mr.P.Rajkumar learned counsel appearing for the appellant and Mr.Kanmani Annamalai, learned Additional Government Pleader appearing for the respondents. 14. The point for consideration in this Writ Appeal is - Whether the Writ Petition filed under Article 226 of the Constitution of India is maintainable without exhausting alternative remedy? 15. On the facts of the case, inspection was conducted between 9.12.2011 and 22.12.2011 by the second respondent. Accounts of the appellant was assessed under the deemed assessment under section 22 (2) of the TNVAT Act. The appellant has claimed exemption of Rs. 12,09,805/- in their monthly returns filed in Form I under the TNVAT Act for the year 2011-12. The first respondent requested to file the details for claiming exemption otherwise, appropriate tax will be levied. Further, at the time of inspection, the enforcement wing officials found stock discrepancy. Along with the pre-revision notice, stock reconciliation statement was also enclosed in view of the proposed revised assessment of the dealer for the year 2011-2012. The objection was received from th....
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....There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under section 20 and this last track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision court under Articles 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act. (d) A Division Bench of this Court in Nivaram Pharma Pvt.Ltd., v. CEGAT, Madras reported in (2005) 2 MLJ 246 : 2006 (205) ELT 9 (Mad), considered similar issue of bypassing alternative remedy in Paragraphs 5 and 6:- "5. 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 Pape Mills Co.Ltd., ....
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....orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). 17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of the instant case. In the light of the same, we are of the considered opinion that the writ Court ought not to have entertained the writ petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the act, the reassessment orders passed and the consequential demand notices issued thereon. (g) In the case of Union of India (UOI) vs. Rubber Products Ltd., reported in MANU/SC/1481/2015, it has been held as follows:- "3. We are of the opinion that the aforesaid view taken by the High Court is unsusta....