TMI Blog2021 (7) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... f any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The points raised in this regard are statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart, in a writ petition, if such orders are passed with jurisdictional errors and quashed without any remand, then an injustice would be caused to the very spirit of the statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent - review of such orders by the higher authorities are imminent to form an opinion that there is willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.01.2016, and the said amendment cannot be applied as far as the impugned assessment orders in these writ petitions are concerned and the assessment orders are to be passed considering the post-amendment carried out under Section 19 in TNVAT Act, 13 of 2015 dated 29.01.2016. 4.The learned counsel for the petitioner reiterated that in all these cases, the assessment years are falling prior to the amendment on 29.01.2016 and therefore, the pre-amended provision under Section 19 for an input tax credit is to be considered for the purpose of passing an assessment order. Pre-amendment provision in Section 19 enumerates that there shall be input tax credit of the amount of tax paid or payable under the TNVAT Act, by the registered dealer to the seller on his purchases of taxable goods specified in the First Schedule. The proviso states that the registered dealer, who claims input tax credit, shall establish that the tax due on such purchases has been paid by him in the manner prescribed. Subsection (2) states that input tax credit shall be allowed for the purchase of goods made within the State from a registered dealer and which are for the purpose of stated in the said provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) pass such other orders as he may think fit; or (b) in the case of any other order, confirm, cancel or vary such order. Proviso to Section 51(3) provides that at the hearing of any appeal, the appropriate authority shall have the right to be heard either in person or by a representative. 8.Section 58 of the Act provides an appeal to the Appellate Tribunal. Sub-Section (1) of Section 58 enumerates that any officer prescribed by the Government or any person objecting to an order passed by the Appellate Deputy Commissioner under sub-Section (3) of Section 51, or by the Appellate Joint Commissioner under Sub-section (3) of Section 52, or by the Joint Commissioner under sub-Section (1) of Section 53, may, (a) within a period of one hundred and twenty days, in the case of an officer so prescribed by the Government; (b) within a period of sixty days, in the case of any other person, from the date on which the order was served, appeal against such order to the Appellate Tribunal. Procedures are also contemplated. 9.Section 59 provides appeal to High Court. Section 60 contemplates revision by High Court. These all are the framework of the statutes in order to facilitate the aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original authority would be of greater importance. 12.The learned counsel for the petitioners raised a point that the impugned assessment orders are passed by the original authority by applying the post-amended provision of the TNVAT Act, which is total non application of mind. Thus, a writ proceedings is entertainable. Even in such case of erroneous application of the provisions of the TNVAT Act, the appellate authority is empowered to correct the same and they are empowered to consider all the legal grounds raised by the parties by affording opportunity. The appeal provision itself contemplates the powers of the appellate authority and they possess enough powers to deal with all issues including the jurisdictional issues and other legal grounds raised by the respective parties. 13.This Court elaborately discussed the importance of exhausting the appellate remedy in the case of M/s.Hyundai Motor India Limited v. The Deputy Commissioner of Income Tax, Chennai and another [W.P.No.22508 of 2017 dated 16.07.2018], from which, the following paragraphs are extracted : 19. Unnecessary or routine invasion into the statutory powers of the competent authorities under a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in Part III and the mandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. [MANU/SC/0445/1973 : (1973) 4 SCC 225]. That separation of powers between the legislature, the executive and the judiciary is the basic structure of the Constitution is expressly stated by Sikri, C.J. 3. P. Kannadasan and Ors. v. State of T.N. and Ors. [MANU/SC/0650/1996 : (1996) 5 SCC 670 ] the Supreme Court noted that the Constitution of India recognised the doctrine of separation of powers between the three organs of the State, namely, the legislature, the executive and the judiciary. The Court said: It must be remembered that our Constitution recognises and incorporates the doctrine of separation of powers between the three organs of the State, viz., the Legislature, the Executive and the Judiciary. Even though the Constitution has adopted the parliamentary form of government where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid. 4. State of Tamil Nadu and Ors. vs. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aligned. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. (vi) If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law. 20. This Court is of a strong opinion that institutional respects are to be maintained by the constitutional Courts. Whenever there is a provision for an appeal under the statute, without exhausting the remedies available under the statute, no writ petition can be entertained in a routine manner. Only on exceptional circumstances, the remedy of appeal can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.) 3. Commissioner of Income Tax and Ors. v. ChhabilDass Agarwal , MANU/SC/0802/2013 : 2014 (1) SCC 603, as follows: Para 15. while it can be said that this Court has recognised some exceptions to the Rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in ThansinghNathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition Under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 6 . K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors., AIR (1954) SC 207; Sangram Singh v. Election Tribunal, Kotah and Ors., AIR (1955) SC 425; Union of India v. T.R. Varma, AIR (1957) SC 882; State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR (1966) SC 1089 , Constitution Benches of the Supreme Court held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority, which is certainly not desirable. 15.Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated. 16.The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The points raised in this regard are statutory violations. However, even such statutory violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the proper forum and only after exhausting the statutory remedies, writ petitions are to be entertained. In the absence of exhausting such remedies, High Court is losing the benefit of deciding the matter on merits, as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide unnecessary opportunities to the assessee to escape from the liability merely on the ground of jurisdictional error, which is rectifiable. 18.These being the principles to be followed, this Court has no hesitation in arriving a conclusion that the petitioner is bound to exhaust the statutory appellate remedy as contemplated under the provisions of the TNVAT Act. It is needless to state that all the materials available on record with reference to the provisions of the TNVAT Act is to be considered for the purpose of passing an assessment order. Thus, the relief as such sought for cannot be granted. However, taking note of the facts and circumstances, the authorities competent are bound to consider the amended provision under Section 19 of the Tamil Nadu Act and pass the assessment orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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