TaxTMI 
TaxTMI 
2017 (11) TMI 1162
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....t, with another entity by the name 'M/s.Nagarjuna 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 ....
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.... As per Section 22(5), the penalty is leviable at 150% of the tax due on the escaped turnover. Penalty levied : Rs. 11,08,61,495.00 Penalty paid : Rs.NIL Balance : Rs. 11,08,61,495.00 A demand notice form "RR" is issued. For Assessment Year 2012-13 "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 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 Penalt....
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....46,10,713.00 for the assessment years 2010-11 to 2012-13, as below Name of the Dealer : Tvl. Coastal Oil and Gas Infrastructure Pvt Limited TIN No. : 33524383769 Act : VAT Year Amount 2010-11 Tax : Rs. 51,20,896.00 Penalty : Rs. 76,81,344.00 2011-12 Tax : Rs. 7,39,07,663.00 Penalty : Rs. 11,08,61,495.00 2012-13 Tax : Rs. 28,15,726.00 Penalty : Rs. 42,23,589.00 Total : Rs.20,46,10,713.00 7. After suffering orders in the rectification petitions filed under Section 84 of the TANVAT Act, 2006, the appellant has chosen to file 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 con....
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....yment on Terminating Service Agreements, the records filed to this office was not supported the above statement. After issue of notice, the dealers have decided to reverse the claim of ITC in their letter dated 24.2.2015. After the detection by the department, the dealers have come to this conclusion to reverse the amount. The dealers have stated that they have reversed the claim of ITC in the returns for the month of February 2015. Finally they have requested to drop the proposal in the notice dated 03.10.2014. On the basis of the above discussions, the objection filed is overruled and the proposal is confirmed. ....." 9. After considering the reasoning and rival submissions and though, writ petitions have been filed beyond the 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 libert....
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....cribed file an application for revision of such order or proceeding to the Deputy 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. (3) On admitting an application for revision, the Deputy Commissioner may call for and examine the record of the order or proceeding against which the application has been preferred and may make such inquiry or cause such inquiry to be made and, subject 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 direc....
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....erfere in a petition under Article 226 of the Constitution, unless there are good grounds to do, otherwise. (ii) In C.A.Ibrahim v. ITO, AIR 1961 SC 609, H.B.Gandhi v. M/s. Gopinath & sons, 1992 (Suppl) 2 SCC 312 and in Karnataka Chemical Industries v. Union of India, 1999 (113) E.L.T. 17(SC) = 2000 (10) SCC 13, the Hon'ble Supreme Court held that where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. (iii) The general principles of law to be followed while entertaining a writ petition, when an alternative remedy is available, as per the decision of the Hon'ble Apex Court in U.P.State Spinning Co. Ltd. Vs. R.S.Pandey and Another (2005) 8 SCC 264, at para No.11 are as follows: "Except for a period when Article 226 was 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 C....
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.... view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision etc., and the particular legislation contains a detailed mechanism for redressal of his grievance. (v) In Nivedita Sharma Vs. Cellular Operators Association of India and Others {(2011) 14 Supreme Court Cases 337}, the Honourable Apex Court held that, An alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there 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 th....
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.... 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 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. 18. In view of the above, we allow this appeal and set aside the judgment and order passed by the High Court in Chhabil Dass Agarwal Vs. Union of India {W.P.(c) No.44 of 2009, decided on 5/10/2010}. 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 Cou....