TaxTMI 
TaxTMI 
2021 (10) TMI 318
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 the dealer approached this Court by way of writ petit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. (3) In disposing of an appeal, the [Appellate Deputy Commissioner] may, after giving the appellant a reasonable opportunity o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h 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 solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.' (Underlining made by this Court to supply....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 already dismissed the writ petitioner's appeal on the same point, albeit, with regard to an earlier Assessment Year being 2008-09 and the same having been carried to this Court by way of a Tax Revision Case cannot be a ground to bypass the alternate remedy. It was always ope....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 forum also the appellant failed to adduce any evidences regarding refund of tax to such bidders from whom tax was collected. In absence of such documentary evidences, the claim of the appellant is not credible. The second point of dispute regarding levy of tax on the sale turn-over of Rs. 1,21,03,375.18 is due to non-furnishin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n, 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 availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 & 128, Paras 43 & 55) "43. Unfortunately, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 back to the learned counsel for the appellant / Assessee after obtaining proper acknowledgement.' 15. To cap it all, this Court reminds itself of the most recent judgment of Hon'ble Supreme Court dated 03.09.2021 in Commercial Steel case law [The Assistant Commissioner of State Tax Appellant(s) and Others Vs.M/s Commercial Steel Limited] made in Civil Appeal No.5121 of 2021 rendered by a Hon'ble three member....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 is a plethora of case-law 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.' Paragraph No.7 of Harbanslal principle: '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 wa....