TaxTMI 
TaxTMI 
2021 (10) TMI 318
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....counsel submits on instructions that the impugned order has been made under Section 27 of 'the Tamil Nadu Value Added Tax Act, 2006 (Tamil Nadu Act 32 of 2006)' ['TNVAT Act' for the sake of brevity, clarity and convenience]. 6. Be that as it may, suffice to say that impugned order pertains to re-assessment qua writ petitioner under TNVAT Act for the Assessment year 2015-16 . 7.Short facts are that the writ petitioner is a dealer in works contract; that writ petitioner was filing monthly returns; that there was deemed assessment under Section 22(2) of TNVAT Act; that for the relevant 'Assessment year 2015-16' (hereinafter 'said AY' for the sake of convenience), the dealer obtained what is known as 'S Certificate' for a turn of over Rs. 4.87 Crores; that according to the Revenue, on subsequent verification of records, it came to light that the dealer has not filed evidence for completion of work executed by him; that therefore revised Assessment Order was issued; that the writ petitioner dealer requested revision under Section 22(6)(a) of TNVAT Act, but this was declined on the ground that the order was not made under Section 22(4); that ....
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....the date on which the order was served on him, in the manner prescribed, appeal to the Appellate [Deputy] Commissioner having jurisdiction: Provided that the [Appellate Deputy Commissioner] may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period: Provided further that in the case of an order under section 22, section 24, section 26, subsections (1), (2), (3) and (4) of section 27, section 28 or section 29, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be, and twenty-five per cent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant. (2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed. ....
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....icer, State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3 SCC 85] has held that when it comes to fiscal statutes, the alternate remedy rule has to be applied with utmost rigour. Relevant paragraph in Dunlop India case is paragraph 3 and relevant paragraph in K.C.Mathew case is paragraph 10, which read as follows: Paragraph 3 of Dunlop India case '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 available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed sole....
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....matters with greater caution, care and circumspection.' (underlining made by this Court to supply emphasis and highlight) 14. To be noted in K.C.Mathew's case, Satyawati Tondon principle has been reiterated, that paragraph has been extracted supra and therefore relevant paragraph in Satyawati Tondon is not reproduced again to avoid verbosity. This Court has also taken the same view on alternate remedy vide orders dated 28.06.2019 made in W.P.No.17804 of 2019 [M/s.Sekar Exports Pvt. Ltd., Vs. The Appellate Deputy Commissioner and another]. The same was carried in appeal vide an intra-court appeal and a Hon'ble Division Bench of this Court sustained the view taken by me vide orders dated 10.02.2020 made in W.A.No.196 of 2020. Relevant paragraphs in my order and order of Hon'ble Division Bench are paragraph 7 and paragraphs 3 and 4 respectively and the same read as follows:- ' Paragraph 7 in W.P.No.17804 of 2019 7. This Court has given its careful consideration to the rival submissions and the discussion leading to considered view of this Court is as follows: a) With regard to first submission of writ petitioner that TNSTAT has a....
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.... petition without expressing any opinion on merits but observing that the matter was under examination by this Court. 11. In normal course, we would not have entertained the plea relating to the merits of the assessment when a statutory remedy has been availed. But what shocks us is the casual manner in which the first appellate authority has disposed of the appeal. The appellate order covers pages 36 to 42 in the paper book. The first page and a part of the second page deal with various data relating to the assessment order, the assessing officer, the registration number and the details of turnovers and the tax, etc. In paragraph 2, the observations of the assessing officer are noted and in paragraph 3, starting from pages 39 to 41, different stands of the appellant have been noted. In paragraph 4, the conclusions of the first appellate authority are noted. They read as follows: "I have carefully gone through the impugned order of assessment averments of the learned Advocate and the materials available on record. On the first point of dispute regarding the claim of the appellant towards refund of tax of Rs. 14,59,122.52 collected from the bidders, before this for....
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....ited Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110]. Besides Satyawati Tandon Case, there are a long line of authorities on alternate remedy and exercise of writ jurisdiction notwithstanding alternate remedy. The obtaining legal position is that alternate remedy is not an absolute rule. In other words, it is not a rule of compulsion, but it is a rule of discretion. Though it is a rule of discretion, in Satyawati Tandon Case, Hon'ble Supreme Court had held that in cases pertaining to taxes, cess, fees etc., the rigour of rule of alternate remedy has to be applied strictly. In other words, this rule has to be applied with greater rigour in matters pertaining to fiscal laws. h) To be noted, Satyawati Tandon principle was recently reiterated by Hon'ble Supreme Court in K.C.Mathew case [Authorized Officer, State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3 SCC 85]. Relevant paragraph is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the av....
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.... satisfied that there is no error in the order passed by the learned Single Judge and even the ground of breach of principles of natural justice, if at all can be established by the Assessee, the Assessee can very well file an appeal under Section 58 of the Act before the Sales Tax Appellate Tribunal besides raising the grounds on the merits of the case. Therefore, it does not entitle the Assessee / Appellant to resort to writ jurisdiction invariably in all circumstances for the alleged breach of principles of natural justice. 4. We are satisfied that in the present case the appellant could avail the effective alternative remedy. The Writ Appeal is disposed of by relegating the matter back to the first appellate authority viz., the The Appellate Deputy Commissioner (CT), Chennai (East), Chennai. If such appeal is preferred within four weeks from today, the first appellate authority shall not raise any objections on the ground of limitation subject to fulfilment of all other usual conditions for entertaining the appeal and shall decide the same in accordance with law. The original assessment order filed by the Assessee along with the typed set of papers shall be returned ba....
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....e Whirlpool principle [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1] and Harbanslal principle [Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd., and others reported in (2003) 2 SCC 107]. Relevant paragraphs in Whirlpool and Harbanslal are paragraph Nos.15 and 7 respectively and the same read as follows: Paragraph No.15 of Whirlpool principle: '15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is 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 ....