TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 123
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....Mr.S.N.Kirubanandam, learned counsel appearing for the appellant and Mr.M.Venkateshwaran, learned Government Advocate appearing for the respondents. 4.The appellant is a registered dealer on the file of the respondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 [TNVAT Act]. For the assessment years under consideration, the appellant filed their return in Form-L and opted to pay lumpsum tax at 2% under the compounding levy scheme in terms of Section 6 of the TNVAT Act. The appellant had also remitted the tax along with the returns as mandated under the Act. The returns were deemed to have been accepted by the respondent/Assessing Officer. While so, the place of business of the appellant was inspected by the Enforcement Wing Officers on several dates and stated that there were several defects. Based on such inspection, the Assessing Officer issued notice dated 16.10.2017 stating that on verification of the records, it was found that the appellant has not filed the option letter for payment of tax under compounding scheme as required under Section 6(2) of the TNVAT Act and in the absence of filing of option letter, the assessee is not eligible to pay tax under Se....
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.... in terms of Section 6(1) of the TNVAT Act. The Assessing Officer did not raised query and the returns were accepted along with the proof of payment of tax. It is much after when the Enforcement Wing inspected the business premises of the appellant, they pointed out several defects, one of which, which is the subject matter in these appeals is with regard to the absence of an option letter for payment of tax under Compounding Scheme in terms of Section 6(2) of the TNVAT Act. The moot question would be whether the option letter may be in writing or can it be inferred that the dealer having paid lumpsum tax at 2% while filing his return, is deemed to have been exercised option in terms of Section 6(1) of the TNVAT Act. 8.Identical issue came up for consideration in the case of K.Ramasamy [supra]. In the said case, as that of the appellant before us, the petitioner therein was a registered dealer under the provisions of the Tamil Nadu General Sales Tax Act [TNGST Act]. Two issues arose for consideration in the said writ petition, first of which would be relevant, namely, whether the Assessing Officer in the said case was justified in holding that the said petitioner has not opted to ....
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....hat arise for consideration is for the purpose of claiming depreciation, whether the assessee should exercise an option before the due date in the manner other than by filing return of income in terms of sub-section (1) of Section 139 of the Income Tax Act. According to the Revenue, each one of the assessee should file a separate application or a letter indicating their intention to avail depreciation in terms of Section 32 read with Rule 5(1) of the Income Tax Rules and since the assessee in each case has not exercised such an option before the due date for furnishing the return of income, they will not be entitled to the benefit of Rule 5(1) Appendix I, but depreciation only under Rule 5(1A) Appendix 1A. 17. It is relevant to note that while filing the return of income, a procedure has been prescribed for claiming depreciation as pointed out above. The assessee has to set out the manner in which depreciation is claimed for the assessment years in question. All the details required for claiming depreciation under various heads are set out thereunder. Rule 5 of the Income Tax Rules is in relation to determination of profits and gains of business or profession and depreciation for....
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....to be held that the appellant/dealer having filed their return in Form-L had opted to pay lumpsum tax at 2% is deemed to have exercised his option to pay tax at compounded rates in terms of Section 6(1) of the TNVAT Act. 11.Since the appellant had questioned the very jurisdiction of the authority to treat the returns filed by the appellant as returns other than exercising option under Section 6(1) of the TNVAT, it is one of the exceptions which has been carved out to enable the aggrieved person to approach this Court under Article 226 of the Constitution of India though an alternative remedy is provided for. That apart, we find that the writ petition has been pending from the year 2018 onwards and the issue being a legal issue, namely, as to whether in the absence of a written form or procedure or exercising the option whether a return filed by payment of compounded rate of tax would deem to be an option exercised by the dealer to pay taxes at compounded rates is a legal question which cannot be decided by the Appellate Authority under the provisions of the TNVAT Act and this is all the more a reason that the appellant should be permitted to approach this Court. Therefore, we hold....
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.... available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of caselaw on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." (emphasis supplied) 27.Following the dictum of this Court in Whirlpool (supra), in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. , this court noted that: "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule o....