TaxTMI 
TaxTMI 
2021 (12) TMI 953
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....unsel on record for the writ petitioner in all the four writ petitions ie., Mr.S.Raja Jeya Chandra Paul submitted that the four impugned orders are identical, the issues are common and the matters can be taken up together. 4.Before I proceed further, it is made clear that I notice that this is the third round of litigation in the first tier qua revisional assessment under TN VAT Act. 5.Short facts ie., short facts or in other words essential facts imperative for appreciating this order and the trajectory the matter has taken is as follows: a) The writ petitioner is a wholesale distributor of gingelly oil, groundnut oil, refined sesame oil, mustard oil etc., manufactured by the writ petitioner's parent company V.V.V. & Sons Edible Oils Ltd., Virudhunagar. b) The writ petitioner is a dealer under TN VAT Act. There was assessment under TN VAT Act. c) Post assessment there was a VAT Enforcement Audit under Section 64(4) of TN VAT Act and the audit team inter alia noticed three defects ie., the sale price is lesser than the purchase price (Defect-1), writ petitioner dealer had not paid tax on sale for 2011-12 in the monthly returns (Defect-2) and Form-H under Rule 6(3)(a) of....
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....n purchase price which warrants reversal of Input Tax Credit (ITC) under Section 19(20) of TN VAT Act. In this regard, it is to be noted that the validity of Section 19(20) of TN VAT Act was assailed in a batch of writ petitions (to be noted writ petitioner also assailed the same) but the same came to be conclusively decided by the Hon'ble Supreme Court in Jayam & Co. Vs. Assistant Commissioner reported in 96 VST Page 1. Hon'ble Supreme Court upheld the validity of Section 19(20) of TN VAT Act which provides for reversal of ITC in cases where the sale price is lesser than the purchase price. 6.In his campaign against the impugned orders in the admission board today, learned Senior Counsel made the following submissions: a) 03.09.2021 pre-revisional notices were not served on the writ petitioner dealer on 04.10.2021 when the orders were made in W.P. (MD)Nos.17985 to 17988 of 2021. b) To respond to 14.07.2021 notice, the writ petitioner dealer sought for time till first week of February but without waiting till first week of February, the pre-revisional notices came to be issued on 03.09.2021 and when the same were challenged the impugned orders were hurriedly made on 28....
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....eady available in the monthly returns filed by the dealer with the department. Instead of producing the book of accounts and other records before me for verification as directed by the Honourable High Court, the dealer has filed only the details which are already available with the department. Thus the dealer without producing the book of accounts and other records as directed by the Hon'ble High Court, has simply requested time to drag on the issue indefinitely, which clearly shows that the dealer has no correct and complete accounts to substantiate their claim. Even though the dealer not produced the book of accounts and other relevant records, in the interest of justice, time is given as requested by the dealer. But, even after lapse of time as requested by the dealer i.e. up to 03.09.2021, the dealer had not produced the books of accounts as requested vide their letter dated 30.07.2021.' [Extracted and reproduced as such] [Emphasis supplied in bold font for ease of reference] c) The writ petitioner has an effective and efficacious alternate remedy by way of an appeal under Section 51 of TN VAT Act as the impugned orders are revisional orders under Section 27. 10.Th....
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....The appellant filed the Writ Petitions to issue Writs of Certiorari, to call for the records of the respondent in respect of the proceedings pertaining to the Assessment Years 2011-2012, 2012-2013, 2013-2014 and 2014-2015 and to quash the pre-revision notices, dated 03.09.2021. 3.Mr.R.L.Ramani, learned Senior Counsel appearing for the appellant submitted that the appellant had sought for three weeks time for submitting their explanation, however, the respondent had declined to grant the time sought for by them and passed the assessment orders. 4.Mr.P.Thilak Kumar, learned Government Pleader, taking notice for the respondent, submitted that earlier the appellant filed Writ Petitions in W.P(MD)Nos.11991, 11992, 11993 and 11994 of 2018 challenging the proceedings pertaining to the assessment orders 2011-2012, 2012-2013, 2013-2014 and 2014-2015 and to quash the pre-revision notices dated 11.05.2018 and the learned Single Judge, by order dated 04.03.2021, disposed of the Writ Petitions by giving an opportunity to the appellant to submit their explanation and directed the respondent to pass orders thereafter. Challenging the order passed by the learned Single Judge, the appellant her....
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....sed. We also make it clear that in the event of the appellant challenging the orders of assessment, dated 28.09.2021, the forum shall decide the same independently uninfluenced by any of the observation made in these Writ Appeals. No costs. Consequently, connected Miscellaneous Petitions are closed. [M.D.,J] [K.M.S.,J.] 28.10.2021 13.Learned Senior Counsel on instructions submitted that the writ petitioner dealer is not carrying the aforementioned order of Hon'ble Division Bench to Hon'ble Supreme Court. In other words legal quietus is being given to the above order is his say. Under such circumstances, it is a matter of judicial discipline that even arguments touching upon challenge to pre-revisional notices being dismissed by another Hon'ble Single Judge cannot be gone into by me sitting as a Single Judge. 14.This takes us to the second facet of the argument which turns on adequacy of opportunity. A careful perusal of the aforementioned trajectory makes it clear that an earlier Division Bench by order dated 28.04.2021, made two things clear and they are - a) The assessment officer is an independent entity who is not bound by the proposal made by the VAT Audit Te....
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....o be a pointer to the position that the reference is to appellate authority. However, I am not making this order solely on this point. This has been mentioned as only one of the buttressing factors. To be noted the aforementioned arguments which were raised in the hearing notwithstanding very many averments and several grounds in writ affidavit and the counter points made by the learned Revenue Counsel have been considered in this order. 17.This takes me to the alternate remedy plea. There is no disputation or disagreement that alternate remedy is available to the writ petitioner by way of a statutory appeal under Section 51 of TN VAT Act. The alternate remedy rule no doubt is not an absolute rule. In other words, the alternate remedy rule is a rule of discretion. It is not only a rule of discretion, it is a self restraint qua writ jurisdiction. In the light of this obtaining legal position, Hon'ble Supreme Court in a long line of judgments ie., Dunlop India case [Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd., and others reported in (1985) 1 SCC 260], Satyawati Tandon [United Bank of India Vs. Satyawati Tondon and others reported in (2....
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.... law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal 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 a....
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....7 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.' 22.A careful perusal of the aforesaid paragraphs make it clear that none of the aforesaid exceptions are attracted in the case on hand. If at all and if that be so, the closest one can come to is NJP [Natural Justice Principle] violation. The trajectory the matter has taken has been clearly set out supra in this order which makes it clear that there is no NJP violation. The Hon'ble Division Bench also in its 28.10.2021 order, more particularly in paragraph No.6 thereat has clearly observed that the respondent had given sufficient opportunity to the appellant to submit their explanation and however for the reasons best known to the appellant the appellant chose to seek for some more time. As the entire order of Hon'ble Divis....