TaxTMI 
TaxTMI 
2021 (11) TMI 8
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned order and a summation of his submissions are as follows: a) Impugned order has given a go-by to the Ashok Leyland principle i.e., ratio laid down by Hon'ble Supreme Court in Ashok Leyland Ltd., Vs. State of Tamil Nadu and another reported in 134 STC 473. Furthering his submission in this direction, learned counsel submitted that once declaration under Section 6A of 'The Central Sales Tax Act, 1956' [hereinafter 'CST Act' for the sake of convenience and clarity] is made by a dealer and accepted by the department reopening if at all can only be in cases of (i) collusion, (ii) fraud, (iii) misrepresentation or (iv) suppression, but none of these facets are present in the case on hand. b) The same Assessing Officer has accepted Ashok Leyland principle and dropped proceedings for another assessment year i.e., 2001-2002 qua same writ petitioner-assessee vide order dated 24.12.2019. To be noted, impugned order pertains to 2000-2001. c) In the impugned order, penalty has been levied under Section 12(3)(b) of TNGST Act though this is proceedings under Section 16 of TNGST Act. Furthering his submission in this direction, learned counsel plac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itive reasoning and arrive at a conclusion. 9. Regarding the first point turning on Ashok Leyland principle, there can be no disputation that Ashok Leyland principle is to the effect that assessment qua escaped turnover post Section 6A of CST Act returns can only be in cases of collusion, fraud, misrepresentation or suppression. In the case on hand, respondent has clearly returned a finding after seeing the entire records, considering the rival submissions in detail and after giving a personal hearing and the findings inter alia are to the effect that certain incriminating material (alluded to supra) were before Assessing Officer. This is captured in sub paragraphs (b) and (c) of paragraph 5(i) of the impugned order, which read as follows: '5. FINDINGS: DEFECT: Disallowance of Exemption on Stock Transfer and Consignment sales (i) The Proforma invoices and Sale Invoices recovered at the time of inspection were carefully perused. On perusal of records and dealer's reply, the following points are noted as reasons for disallowance of stock transfer. a. ...... b. Sale invoices are raised to different customers exactly to the same value immedia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sment year 2001-02. Based on the judicial judgment reported in 134 STC 473 in the case of M/s.Ashok Leyland Ltd., rendered by the Honourable Supreme Court of India which was squarely applicable to the dealer's case, and also the observation of the Honourable High Court, Madras in dealer's own case in WP.No.39386 of 2004 dated 31.07.2019, the dealers objections were found to be reasonable and acceptable after considering facts of the case. Further, the entire branch transfer value was covered by valid form 'F' which were already verified by the Assessing officer while passing original orders on 31-03-2003 for the year 2001-02.' 12. As rightly pointed out by learned Revenue counsel, that was a case where there was no incriminating material and therefore, it is clearly distinguishable on facts. This Court has no difficulty in agreeing with learned Revenue counsel that the incumbents who made the earlier order and the impugned order are different as the names mentioned in the orders make this position very clear. In any event, the argument that the same officer took a different view is incorrect and the further factual submission that it is the same officer is al....
X X X X Extracts X X X X
X X X X Extracts X X X X
....edures. 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 emphasis and highlight) 16. In K.C.Mathew case, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ondon case law. 18. Be that as it may, very recently i.e., on 03.09.2021 a three member Hon'ble Bench of Hon'ble Supreme Court speaking through Hon'ble Dr.Dhananjaya Y Chandrachud in Commercial Steel case law [The Assistant Commissioner of State Tax Appellant(s) and Others Vs. M/s Commercial Steel Limited] set out the exceptions to alternate remedy rule and held that interference qua writ jurisdiction should be by way of huge exceptions and the exceptions have been adumbrated in Commercial Steel. Relevant paragraphs in Commercial Steel case law are Paragraphs 11 and 12 and the same read as follows: '11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vi....