TaxTMI 
TaxTMI 
2017 (11) TMI 1162
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....agarjuna Oil Company Limited' [in short "NOCL"]. Agreement was executed on 26.05.2010 and titled as "Terminalling Service Agreement". By virtue of the said agreement appellant was required to build storage terminals for the benefit of NOCL. Land on which the terminal was required to be constructed was owned by NOCL. Agreement required the appellant to design, to provide engineering, to procure the requisite construction materials and to erect the terminal, for the use of NOCL. 4. Scrutinising the returns, the Assistant Commissioner (CT), Cuddalore Town Circle, Cuddalore, 1st respondent passed an order dated 18.07.2017. As consideration to facts and submissions are same, suffice to incorporate the final determination of the Assistant Commissioner (CT) (FAC), Cuddalore Town, 1st respondent for the above assessment years. For Assessment Year 2010-11 "On the basis of the above discussions, the objection filed is overruled and the proposal is confirmed. The total and taxable turnover is determined for the year 2010-11 under sec.22(4) of the Act as shown below. Turnover determined Details Turnover Rate Tax due Deemed sales Turnover of goods determined Rs.12,80,22,410.00....
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....he objection filed is overruled and the proposal is confirmed. The total and taxable turnover is determined for the year 2012-13 under sec.22(4) of the Act as shown below. Turnover determined Details Turnover Rate Tax due Deemed sales Turnover of goods determined Rs.6,26,54,680.00 4% Rs.31,32,734- Total and taxable turnover determined Rs.6,26,54,680.00 Rs.31,32,734- Tax due : Rs. 31,32,734.00 ITC available : Rs. 3,17,008.00 Tax paid : Rs.NIL Balance : Rs. 28,15,726.00 A demand notice in Form 'O' is issued. Levy of penalty under Section 22(5) of the Act. As per Section 22(5), the penalty is leviable at 150% of the tax due on the escaped turnover. Penalty levied : Rs. 42,23,589.00 Penalty paid : Rs.NIL Balance : Rs. 42,23,589.00 A demand notice form "RR" is issued. 5. Material on record discloses that being aggrieved by the abovesaid orders for the assessment years, 2010-11, 2011-12 and 2012-13, respectively, petitioners have filed rectification petition under Section 84 of the TNVAT Act, praying to set aside the errors and mistakes alleged to have been committed in the assessment orders for the above said years. Consideri....
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....e W.P.Nos.41443 to 41445 of 2016 challenging the original assessment orders dated 18.07.2016, issued by the Assistant Commissioner (CT), Cuddalore Town Circle, Cuddalore for the assessment years 2010-11 to 2012-13, contending inter alia that the assessing officer has failed to consider that payment have been made to ABIR Infrastructures Private Limited [in short 'ABIR'], sub contractor and as per Rule 8(5) of the TNVAT Rules 2007, [in short 'Rules'], the same has to be adjusted, which assessing officer has failed to consider and erred in passing the orders impugned in the writ petition. 8. Before the writ Court, contention has been made, that when the abovesaid issue involves a question of law, assessment orders, deserve to be interfered with. Refuting the above, revenue has contended that the abovesaid contention being a question of fact can always be addressed in the appeal, if any filed. After hearing the learned counsel for the parties and after considered the reasoning of the assessment officer, in one of the orders dated 18.07.2016, pertaining to the assessment year 2010-11, the writ Court extracted the same, as hereunder "..... 1. The dealers in their appl....
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.... statutory period provided therefor, for filing the appeal and taking note of the decisions of the Hon'ble Supreme Court in M.P.Steel Corporation Vs. Commissioner of Central Excise, reported in 2015 (5) Scale 505, J.Kumaradasan Nair V. IRIC Sohan, reported in (2009) 12 SCC 175 and Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement, reported in (2010) 4 SCC 772, dismissed the writ petitions by giving liberty to the appellant, to approach the concerned statutory authority. 10. Perusal of the order made in the writ petitions impugned before us indicates that though submission has been made by the learned counsel for the appellant, that they do not have the requisite funds to make a pre deposit of 25% of the disputed tax, taking note of the observations of the Hon'ble Supreme Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement, reported in (2010) 4 SCC 772, in particular, paragraph No.31 at page 781, writ Court declined to accept the said contention regarding pre deposit. 11. Though in the instant writ appeals filed against the order made in W.P.Nos.41443 to 41445 of 2016 dated 07.02.2017, Mr.C.Baktha Siromani, learned counsel for....
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....ject to the provisions of this Act, pass such order thereon as he thinks fit. (4) Notwithstanding that an application has been preferred under sub-section (1), the tax, fee or other amount shall be paid in accordance with the order or proceeding against which the application has been preferred: Provided that the Deputy Commissioner may in his discretion give such directions as he thinks fit, in regard to the payment of such tax, fee or other amount before the disposal of revision, if the applicant furnishes sufficient security to his satisfaction in such form and in such manner as may be prescribed. (5) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. 15. An order under rectification petition can be challenged only by way of a revision under Section 54 of the Act. Despite the same, exercising discretion in favour of the appellant, writ Court has granted liberty to file the appeal. Though, Mr.C.Baktha Siromani, learned counsel for the appellant contended that the writ Court has failed to advert to the jurisdictional issue and question of law and merely relegated the appellant to....
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....amended by the Constitution (Forty-Second Amendment) Act, 1976, 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 o....
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.... has been a violation of the 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 nat....
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..... 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 cannot override or....