TaxTMI 
TaxTMI 
2017 (11) TMI 468
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.... rectification before the Assistant Commissioner (CT), Pondy Bazaar Assessment Circle, Chennai, the respondent herein. 2. Before the said authority, contentions were also made that one of the partners of the appellant, was residing in Puducherry, purchased the cars in his own name and the vehicles were registered in the Union Territory of Puducherry and that they were sold in Puducherry. Consideration for the purpose of sale alone was borne / favoured in the name of the appellant who is in Tamil Nadu and registered on the file of the respondent. Therefore, it was contended that the residence of the partner was at Puducherry and that the car was purchased from a dealer situated outside the State and the relevant tax was borne at the point of first sale and thereafter the sale of the used cars was effected by the partner to a dealer outside the State of Puducherry, which is an interstate sale simplicitor. Thus, it was contended that practically there was no jurisdiction for the sufferance of tax inside the State of Tamil Nadu. Further, the appellant has contended that the returns filed by the dealer disclosing the used car sales as taxable @ 5% was unwarranted and uncalled for and....
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.... hierarchy of remedies, the petitioner should not be permitted to by-pass such alternative remedy available to the petitioner. 10. Thus for the above reasons, the preliminary issue is decided against the petitioner and it is held that the writ petitions are not maintainable." 5. Instant writ appeals have been filed against the said orders. Inviting the attention of this Court to the preamble of the Tamilnadu Value Added Tax Act, 2006 that, it is an Act to consolidate and amend the law relating to the levy of tax on the sale or purchase of goods in the State of Tamilnadu, explanation (v) to Section 2(33) of the Tamilnadu Value Added Tax Act, 2006, which defines 'sale', details of the purchase of the cars and sale effected outside the state of Tamilnadu, extracted in the rectification order dated 16.06.2017 of the Assistant Commissioner (CT), Pondy Bazaar Assessment Circle, Chennai, and placing reliance on the decisions of this Court in W.P.No.16576 of 2001 dated 21.11.2003, in the matter of M/s.V.Guard Industries Limited, Coimbatore Vs. Commercial Tax Officer, Coimbatore and another and another decision in Tax Case (Appeal) No.125 of 2007 dated 13.02.2014 in the ....
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....76, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the high Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction." (iv) In United Bank of India Vs. Satyawati Tondon and Others {(2010) 8 SCC 110}, the Hon'ble Apex Court, at paragraph Nos.43 to 45, held as follows:- "43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is avail....
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....e principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute are under challenge. The Court has recognised some exceptions to the rule of alternative remedy. However, the high Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal or grievance still holds the field." (vi) The Hon'ble Apex Court, after considering a catena of cases, in Shauntlabai Derkar and Another Vs. Maroti Dewaji Wadaskar {(2014) 1 Supreme Court Cases 602}, at para Nos.15 to 18, held as follows:- "15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e, where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the....
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....010}. We grant liberty to the respondent, if he so desires, to file an appropriate petition/appeal against the orders of reassessment passed under Section 148 of the Act within four weeks' time from today. If the petition is filed before the appellate authority within the time granted by this Court, the appellate authority within the time granted by this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No.44 of 2009, in its judgment and order dated 5/10/2010." (vii) After considering a plethora of judgments, in Union of India and Others Vs.Major General Shri Kant Sharma and Another {(2015) 6 SCC 773}, at para36, the Apex Court held as follows:- "The aforesaid decisions rendered by this Court can be summarised as follows:- (i). The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cann....
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....t has also observed that when the deemed assessment have taken place, at the instance of the petitioner, who had filed the returns, duly supported by Form-WW Certificates by a Chartered Accountant, writ Court cannot embark upon a fact-finding exercise to examine the correctness of the stand taken by the respondent therein, to ascertain as to whether there was an error apparent on the face of the record. 8. Though Mrs.R.Hemalatha, learned counsel for the appellant, invited the attention of this Court to the purchase and sale of cars, stated to have been taken place outside the State of Tamilnadu and further contended that State has no power to levy a tax and in that context there being a jurisdictional issue, Court can entertain a writ petition, we are of the view that under the scheme of the taxing statutes, even the question of jurisdiction, can always be raised before the concerned authorities. It is also to be seen that while considering the rectification petitions, filed under Section 84 of the Tamilnadu Value Added Tax Act, 2006, vide order dated 16.06.2017, the Assistant Commissioner (CT), Pondy Bazaar Assessment Circle, Chennai, has considered as to whether the case of th....