TaxTMI 
TaxTMI 
2019 (7) TMI 892
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....that the writ petitioner is a dealer under TNVAT Act and that the turnover of writ petitioner was over Rupees one crore in the assessment year concerned namely 2016- 2017. 6. The assessment year 2016-2017, which forms subject matter of the instant writ petition shall be referred to 'said AY' for the sake of convenience and clarity. 7. It is not in dispute that the writ petitioner did not file report from the Auditor being Auditor's statement in the prescribed form. To be noted, prescribed form is Form 'WW'. To be noted, under Section 63A of TNVAT Act and Rule 16A of TNVAT Rules, there is a statutory duty / statutory obligation cast on the writ petitioner dealer to file and submit report of Auditor in Form 'WW' on or before end of the Calendar year qua said AY. This in effect means that the writ petitioner dealer ought to have filed Form 'WW' being Auditor's statement in the prescribed form on or before 31.12.2017 in the instant case. There is also no disputation or disagreement that the writ petitioner dealer did not do this. 8. Under such circumstances, the respondent issued a notice dated 01.02.2018 captioned 'NOTICE FOR NON RECEIPT ....
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....Tamil Nadu State Road Transport Corporations and similar such registered dealers, as may be notified by the Government.] 16-A. Procedure for filing Audit Report-(1) Every registered dealer liable to get his account audited as per sub-section(1) of Section 63-A shall furnish the [audit report in electronic Form WW within nine months from the end of the [financial year]. [Provided that the audit report in Form WW to be furnished under this sub-rule, by the registered dealer having his principal place of business in the revenue districts of Chennai, Kancheepuram, Thiruvallur, Cuddalore, Thoothukudi, or Thirunelveli, for the financial year 2014-2015 on or before 31st December 2015, may be furnished on or before the 31st January 2016.] (2) The notice for levy of penalty will be issued in Form-RR.]' 9. The second thing which respondent has done vide this notice dated 01.02.2018 is that the respondent has called upon the writ petitioner dealer to submit Form 'WW' albeit with a delay as mentioned supra, but writ petitioner had not submitted Auditor's statement in the prescribed form. 10. Admittedly, writ petitioner dealer did not send a reply. Not only the writ peti....
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.... was also pointed out that in that case, Hon'ble Division Bench had directed assessment to be done. 16. This Court has carefully perused the Hon'ble Division Bench judgment and also heard learned Revenue counsel. Learned Revenue counsel drawing the attention of this Court to paragraphs 5 and 6 of the judgment of Hon'ble Division Bench, pointed out that 'Tvl.Nithra Furniture case' was a case, where the best judgment assessment order was not the lone issue, but rejection of request for passing a revised assessment order being negatived was dovetailed with the same. 17. In paragraph 6, Hon'ble Division Bench had categorically held that the Assessing Officer is justified in passing an assessment by resorting to best judgment assessment under Section 22(4), when the respondent does not respond to notices but what was faulted was the rejection of request for further revision. 18. In response, it was pointed out by learned Revenue counsel that adequate opportunity had been given to the writ petitioner by way of issuing aforesaid notices dated 01.02.2018 and 12.03.2018, which have been alluded to supra and therefore, even according to Nithra Furniture Principle, ....
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.... respondent has made some approximation and has taken into account whatever material was available before him. Writ petitioner has not produced any contra material thereafter though the respondent had specifically asked for three different sets of documents, which were not produced. 23. Therefore, this Court is inclined to accept the submission that the instant case is distinguishable on facts from 'Tvl.Nithra Furniture case'. 24. Now that the instant case is distinguishable on facts from 'Tvl.Nithra Furniture case', it takes us back to the 'H.M.Esufali principle'. 'H.M.Esufali principle', in turn flows from an earlier judgment of Hon'ble Supreme Court in the case of The State of Madras Vs. S.G.Jayaraj Nadar and Sons reported in (1972) 3 Supreme Court Cases 300, which is equivalent to 28 STC 700 [hereinafter 'S.G.Jayaraj Nadar principle' for brevity] 25. Most relevant part of S.G.Jayaraj Nadar principle is contained in paragraph 4 and the relevant portion of paragraph 4 reads as follows: '4.... It is well known that the best judgment assessment has to be on an estimate which the assessing authority has to make not capriciously bu....
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....ed turnover, it is inevitable that there is some guesswork. The assessing authority while making the 'best judgment assessment no doubt should arrive at its conclusion without any bias and on rational basis. That authority should not be vindictive or capricious. If the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis, the fact that there is no good proof in support of that estimate is immaterial. Prima facie, the assessing authority is the best judge of the situation. It is his 'best-judgment' and not of any one else's. The High Court could not substitute its 'best-judgment' for that of the assessing authority. In the case of 'best-judgment' assessments, the courts will have to first see whether the accounts maintained by the assessee were rightly rejected as unreliable. If they come to the conclusion that they were rightly rejected, the next question that arises for consideration is whether the basis adopted in estimating the turnover has a reasonable nexus with the estimate made. If the basis adopted is held to be a relevant basis even though the courts may think that it is not the most appropriate b....
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.... the aforesaid two notices namely notices dated 01.02.2018 and 12.03.2018 as an integral part and parcel of the impugned order is, there is a clear reference to these notices in impugned order, giving even the dates of service with specificity. This is articulated in the paragraph in the impugned order, which has been extracted and reproduced supra. This shows that notice for non receipt of Form 'WW' was issued to the dealer, which was served on the writ petitioner on 09.02.2018 and the 12.03.2018 communication was served on the writ petitioner on 26.03.2018, both by registered post with acknowledgment due. To be noted, in any event there is no disputation in this regard before this Court. In other words, it is the admitted position that these two notices were duly served on the writ petitioner. There is also no disputation that these two notices did not evoke any response or reply from the writ petitioner as alluded to supra. 31. Therefore, applying the 'H.M.Esufali principle' and 'S.G.Jayaraj Nadar principle' laid down by Hon'ble Supreme Court, this Court is left with the considered view that this is not a fit case calling for interference qua impugn....
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....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 not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory....