TaxTMI 
TaxTMI 
2017 (11) TMI 863
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....e appellant, the same was returned with a postal endorsement that "no such addressee in the door number", and when the appellant had refused to receive the notice, not cooperated with the department, the conduct of the dealer cannot be ignored. Adverting to the contention of the appellant that they have surrendered Registration Certificate as early as on 30.11.2011 and though, Local Delivery Book was produced to substantiate surrender of Registration Certificate, declining to accept the same as proof of surrender of Registration Certificate, and that grounds raised being questions of fact, vide common order dated 30.06.2016, dismissed the writ petitions, giving liberty to the petitioner, either to seek for rectification of the orders passed by the Commercial Tax Officer, Perur Assessment Circle, Coimbatore, respondent herein, by invoking the power under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 by filing a petition or to file an appeal before the Appellate Authority. 3. Assailing the correctness of the common order made in W.P. Nos.21322 to 21325 of 2016, instant writ appeals have been filed. Though Mr.C.Baktha Siromoni, learned counsel for the appellant, reiterated....
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....ided, the high Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction." 3.4. 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 available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they do not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefor....
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....es 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 proposition laid down in Thansingh Nathmal Case {Thansigh Nathmal Vs. Supt. of Taxes, AIR 1964 SC 1419}, Titaghur Paper Mills Case {Titaghur Paper Mills Co. Ltd Vs. State of Orissa (1983) 2 SCC 433} and other similar judgments that 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 of grievance still holds the field. Therefore, when a statutory forum is crated by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. ....
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....5/10/2010." 3.7. 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 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India (Refer: L.Chandrakumar Vs. Union of India (1997) 3 SCC 261 and S.N.Mukherjee Vs. Union of India (1990) 4 SCC 594. (ii). The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act (Refer: Mafatlal Industries Ltd., Vs. Union of India (1997) 5 SC 536. (iii). When a statutory forum is created by law for ....
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....rguments, we deem it fit to have a cursory look of the statutory provisions. 7. As similar assessment orders are passed, suffice to consider one of the assessment orders passed by the Commercial Tax Officer, Perur Assessment Circle, Coimbatore, dated 6.1.2016, for the year 2012-13, reads as under: "Sales suppression for the year 2012-2013 On cross verification of their sales details taken from other your Annexure-I, it was found that though they have made sales to the following dealers but suppressed by them in a malafide intention to evade payment of tax by not filing the returns as required under Sec. 19 of the TNVAT Act, 2006. From the reading of the assessment order for the year 2012-13, it could be deduced that there was a prima facie opinion of sales suppression for the year 2012-2013. Another issue considered by the Assessing Officer is local sales effected through van not reported in monthly returns. 8. Section 19 of the TNVAT Act, 2006 is reproduced. 19. Input tax credit : - (1) There shall be input tax credit of the amount of tax paid under this Act, by the registered dealer to the seller on his purchases of taxable goods specified in t....
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....State otherwise than by way of sale; or (ii) for use in manufacture of other goods and transfer to a place outside the State, otherwise than by way of sale: Provided that if a dealer has already availed input tax credit there shall be reversal of credit against such transfer. (5) (a) No input tax credit shall be allowed in respect of sale of goods exempted under section 15 (b) No input tax credit shall be allowed on tax paid [or Payable] in other States or Union Territories on goods brought into this State from outside the State. [Omitted] (c) No input tax credit shall be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course of inter - State trade or commerce falling under sub - section (2) of section 8 of the Central Sales Tax Act, 1956.(Central Act 74 of 1956).] (6) No input tax credit shall be allowed on purchase of capital goods, which are used exclusively in the manufacture of goods exempted under section 15. [Provided that on the purchase of capital goods which are used in the manufacture of exempted goods and taxable goods, in put tax credit shall be allowe....
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....hase, whichever is later. (12) Where a dealer has availed credit on inputs and when the finished goods become exempt, credit availed on inputs used therein, shall be reversed. (13) Where a registered dealer without entering into a transaction of sale, issues an invoice, bill or cash memorandum to another registered dealer, with the intention to defraud the Government revenue, the assessing authority shall, after making such enquiry as it thinks fit and giving a reasonable opportunity of being heard, deny the benefit of input tax credit to such registered dealer who has claimed input tax credit based on such invoice, bill or cash memorandum from such date. (14) Where the business of a registered dealer is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the business to a joint venture with the specific provision for transfer of liabilities of such business, then, the registered dealer shall be entitled to transfer the input tax credit lying unutilized in his accounts to such sold, merged, amalgamated, leased or transferred concern. The transfer of input tax credit shall be allowed only if the s....
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....nctioned by the Government, input tax credit shall be allowed only to the extent of aggregate of output tax paid on the re-sale of such goods and the sale of goods manufactured out of such goods, within the State or in the course of inter-State trade or commerce. Section 22 of the Tamil Nadu Value Added Tax Act, 2006 deals with deemed assessment and procedure to be followed by the assessing authority, which reads as under: 22 [ Deemed Assessment and ] procedure to be followed by the assessing authority. (1) The assessment in respect of the dealer shall be on the basis of return relating to his turnover submitted in the prescribed manner within the prescribed period. (2) The assessing authority shall accept the returns submitted for the year, by the dealer, if the returns are in the prescribed form and accompanied with the prescribed documents and proof of payment of tax. Every such dealer shall be deemed to have been assessed for the year on the 31st day of October of the succeeding year Provided that in respect of such returns submitted for the years 2006 - 2007, 2007 - 2008, 2008 - 2009, 2009 - 2010 and 2010 - 2011, on which assessment order are not ....
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....sessing authority without reference to any specific concealment of turnover; (ii) Any turnover estimated by the assessing authority with reference to any specific concealment of turnover as per the returns; (iii) Any turnover on which tax is paid at the concessional rate subject to the condition of furnishing any declaration but where such declaration could not be furnished at the time of assessment. (5) In addition to the tax assessed under sub - section (4), the assessing authority shall in the same order of assessment passed under sub - section (4) or by a separate order, direct the dealer to pay by way of penalty, a sum which shall be, in the case of failure to submit return, one hundred and fifty percent of the tax assessed: Provided that no penalty under this sub - section shall be imposed after the period of five years from the date of assessment order under this Section unless the dealer affected has had a reasonable opportunity of showing cause against such imposition. (6) (a) Any dealer assessed under sub - section (4) may, within a period of thirty days from the date of service of the assessment order, apply to the assessing a....
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....peal shall be entertained under this sub - section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such installments thereof as might have become payable, as the case may be, and twenty five per cent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant. (2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed. (3) In disposing of an appeal, the Appellate Deputy Commissioner may, after giving the appellant a reasonable opportunity of being heard, and for the sufficient reasons to be recorded in writing - (a) in the case of an order of assessment (i) confirm, reduce, enhance or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orde rs as he may think fit; or b) in the case of any other order, confirm, cancel or vary such orde....
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....d in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees, as may be prescribed. (3) In disposing of an appeal, the Appellate Deputy Commissioner may, after giving the appellant a reasonable opportunity of being heard, and for the sufficient reasons to be recorded in writing - (a) in the case of an order of assessment -- (i) confirm, reduce, enhance or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the Assistant Commissioner (Assessment) to make a fresh assessment after such further inquiry as may be directed; or (iii) pass 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, the Assistant Commissioner (Assessment) shall have the right to be heard either in person or by a representative. (4) Notwithstanding that an appeal has been preferred under sub - section (1), the tax shall be paid in accordance with the order of assessment against which the appeal has been preferred: Provided that the Appellate Deputy Commissioner ma....
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....e authority, the Asst Deputy Commissioner, are appealed to the Deputy Commissioner, and orders passed by the Deputy Commissioner, under the abovesaid provisions, are appealable to the Joint Commissioner. 12. Section 54 of TNVAT Act, 2006 deals with powers of the revision of the Joint Commissioner. 54. Powers of revision of Joint Commissioner. -- (1) Any person objecting to an order passed Or Proceeding recorded under this Act for which an appeal has not been provided for in section 51 or section 52 may within a period of thirty days from the date on which a copy of the order or proceeding was served on him, in the manner prescribed file an application for revision of such order or proceeding to the Joint Commissioner: Provided that the Deputy Commissioner may within a further period of thirty days admit an application for revision presented after the expiration of the first mentioned period of thirty days, if he is satisfied that the applicant had sufficient cause for not presenting the application within the first mentioned period. (2) An application for revision shall be in the prescribed form and shall be verified in the prescribed manner. ....