TaxTMI 
TaxTMI 
2019 (9) TMI 699
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....nafter 'TNVAT ACT' for brevity]. 4. It is submitted without any disputation or disagreement that all these seven writ petitions arise out of a common factual matrix. The central theme/core issue is one and the same and only assessment years are different. 5. To be precise, it is submitted that seven assessment years relatable to these seven writ petitions are 2009 - 2010 to 2015 - 2016 (seven successive assessment years). 6. Notwithstanding very many averments made in the affidavit filed in support of these writ petitions and notwithstanding very many grounds urged/contentions canvassed in the affidavit filed in support of these writ petitions, at the hearing, the arguments were focused and projected on one pivotal submission and that one pivotal submission pertains to personal hearing. 7. Short facts shorn of micro details/particulars are to the effect that writ petitioner is a dealer under TNVAT Act, that writ petitioner was filing monthly returns under Section 21 of TNVAT Act, that there was deemed assessment under Section 22 of TNVAT Act, that the business premises of the writ petitioner was inspected by the Enforcement Wing officials of Commercial Tax Department an....
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....f sub-section (3), at any time within a period of [six years from the date of assessment], determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary. (b) Where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it is assessable, the assessing authority may, at any time within a period of [six years from the date of assessment], re-assess the tax due after making such enquiry as it may consider necessary. (2) Where, for any reason, the input tax credit has been availed wrongly or where any dealer produces false bills, vouchers, declaration certificate or any other documents with a view to support his claim of input tax credit or refund, the assessing authority shall, at any time, within a period of [six years from the date of assessment], reverse input tax credit availed and determine the tax due after making such a enquiry, as it may consider necessary: Provided that no order shall be passed under sub-sections (1) and (2) without giving the dealer a rea....
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....desire, within the above allowed notice time." 17. To be noted, opportunity of personal hearing has been afforded, at the discretion of the Assessing Officer though it is not statutorily imperative. 18. Further, as already mentioned above, the writ petitioner sent detailed objections dated 02.03.2017, but the writ petitioner did not go to the office of the respondent and avail the opportunity of personal hearing. It is very fairly submitted that it is not the case of the writ petitioner that they went over to the office of the respondent and an opportunity of personal hearing was not granted. 19. When things stood thus, after examining objections, another revisional notice (also referred to supra) signed on 29.12.2018 was issued by the respondent and this was admittedly received by the writ petitioner on 02.01.2019. For this second revisional notice also again an opportunity of personal hearing was afforded to the writ petitioner and the relevant portion of the second revisional notice reads as follows: "They are also given an opportunity of personal hearing within the prescribed time of 15 days or any working day before the undersigned along with evidences." T....
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.... in the considered view and opinion of this Court is, the clincher is that the writ petitioner has not articulated in the reply dated 09.01.2019 (second revisional notice) that they are expecting the respondent Assessing Officer to specify a date and time for personal hearing. On the contrary, reply to the second revisional notice dated 09.09.2019 is completely silent about personal hearing and the opportunity of personal hearing that is being afforded to the writ petitioner for the second time. 22. Therefore, these are cases where personal hearing has not been availed by the writ petitioner though an opportunity was given not once but on two occasions. More importantly, it is not writ petitioners case that they had responded by requesting the respondent authority to specify a date and time. With regard to personal hearing, learned counsel for writ petitioner pressed into service two orders of this Court, one being an order dated 16.08.2017 made in W.P.Nos.21193 to 21195 of 2017 and the other being an order dated 21.03.2017 made in Albis Constructions Private Limited vs. Assistant Commissioner, 2017 (102) VST 131 (Mad.). In the considered view of this Court, a careful reading of....
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....he rule of alternate remedy no doubt is a self imposed restraint by Courts exercising writ jurisdiction. In other words, rule of alternate remedy is not a rule of compulsion, but it is a rule of discretion. Be that as it may, with regard to rule of alternate remedy, one important case law of the Hon'ble Supreme Court is Dunlop India case [Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. and ors.] reported in (1985) 1 SCC 260, relevant paragraph is Paragraph 3 and the same reads as follows: '3......Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are a....
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....al 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 remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' (Underlining made by Court to supply emphasis and highlight) 28. From a long line of authorities, more particularly, the three celebrated judgments, which have been set out supra, it comes out clearly that the rule of alternate remedy is not a rule of compulsion, but it is a rule of discretion . Though it is not an absolute rule, the same has to be applied with utmost rigour when it comes to matters relating t....