TMI Blog2021 (12) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner 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. The campaign of the writ petitioner qua the impugned orders in the captioned four writ petitions fail and the writ petitions are dismissed albeit making it clear that if the writ petitioner chooses the alternate remedy route and files statutory appeals, the same will be considered (subject of course to limitation and pre-deposit condition) by the appellate authority on its own merits and in accordance with law - this Court also makes it clear that this is the third round of litigation in the first tier of tax assessment and therefore, this Court is of the view that it is time that the dealer moves on to the appellate authority which is also an authority which can go into facts including examination of books of accounts. Writ Petitions are dismissed. - W.P.(MD)Nos.20182 to 20185 of 2021 And W.M.P.(MD)Nos.16876 to 16879 of 2021 - - - Dated:- 15-11-2021 - Honourable Mr.Justice M.Sundar For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitting an additional show cause notice to be issued. This order was carried in appeal by way of intra Court appeals and Hon'ble Division Bench disposed of the four writ appeals ie., W.A. (MD)Nos.910 to 913 of 2021 in and by a common order dated 28.04.2021, interfering with the order of the Hon'ble Single Judge and saying that in cases of this nature, production of books of accounts is necessary and fresh notices have to be issued. e) Pursuant to the aforesaid order of the Hon'ble Division Bench fresh notices were issued on 14.07.2021 which met with atleast four letters dated 30.07.2021, 03.08.2021, 05.08.2021 and 09.08.2021 seeking extension of time to respond. Ultimately objections for the four assessment years along with purchase and sales statements were filed on 27.08.2021. Thereafter, pre-revision notices were issued for the four assessment years all dated 03.09.2021. These 03.09.2021 pre-revision notices (four in number) were assailed by the writ petitioner by way of four writ petitions being W.P.(MD)Nos. 17985 to 17988 of 2021 and all these four writ petitions came to be dismissed by another Hon'ble Single Judge on 04.10.2021 inter alia on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty who is not bound by the proposals made by the VAT audit team and therefore some more time need to be given for producing all the books of accounts. d) There is a reference to writ petitioner's objection dated 27.08.2021 in the impugned orders but the same has not been considered. 7. Mr.M.Lingadurai, learned Special Government Pleader accepted notice on behalf of the lone respondent. 8. Owing to the narrow compass on which the captioned matter turns, main writ petitions were taken up with the consent of both sides. 9. Learned Revenue Counsel ie., learned State Counsel [Special Government Pleader] made submissions which are as follows: a) The argument turning on 03.09.2021 pre-revisional notices cannot be used now as the same has been conclusively decided by a common order dated 28.09.2021. b) It cannot be stated that adequate opportunity has not been given as the impugned orders make it clear that the writ petitioner instead of producing books of accounts and other records for verification as directed by the Hon'ble High Court has filed only details which are already available with the department. However, further opportunity was given to the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the rival submissions, discuss the same and give my dispositive reasoning for the conclusion which has ultimately been arrived at infra. 12. The first point turns on 03.09.2021 pre-revisional notices. As rightly pointed out by learned Revenue Counsel, this matter cannot be gone into by this Court. This is a matter of judicial discipline. The 03.09.2021 pre-revisional notices were challenged by the writ petitioner dealer by way of four writ petitions ie., W.P. (MD)Nos.17985 to 17988 of 2021 and all the four writ petitions were dismissed by a common order by another Hon'ble Single Judge. This 04.10.2021 order was carried in appeal by way of four intra Court appeals and a Hon'ble Division Bench has dismissed all the four writ appeals by a common order dated 28.10.2021. This Court deems it appropriate to scan and reproduce the entire order of the Hon'ble Division Bench and the same is as follows: BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.10.2021 CORAM: THE HONOURABLE MR.JUSTICE M.DURAISWAMY AND THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR W.A(MD)Nos.1974, 1975, 1976 1977 of 2021 and C.M.P(MD)Nos.8924, 8925, 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 herein filed W.A(MD)Nos.910 to 913 of 2021 challenging the orders passed in W.P(MD)Nos.11991 to 11994 of 2018 and the Division Bench of this Court, by order dated 28.04.2021, allowed the Writ Appeals and directed the respondent to give show-cause notice to the appellant calling upon them to produce all the books of accounts and other records in the light of the direction issued in the Circular, dated 04.11.2013 and directed the Assessing Officer to form a prima facie opinion and thereafter, issue revision notice, cause sufficient opportunity to the appellant to submit their objections and thereafter, after affording an opportunity of hearing, complete the assessment. The Division Bench also directed the respondent to comply with the directions within a period of four weeks from the date of receipt of a copy of the Judgment. After disposal of the Writ Appeals, the respondent issued notices on 14.07.2021 and after affording sufficient opportunity to the appellant, passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned 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 Team. b) The books of accounts have to be looked into in cases of this nature viz., where 19(20) ITC reversal on account of sale price being lesser than purchase price arises. 15. It is pursuant to above that 14.07.2021 notices were issued by the respondent which met with repeated requests for extension of time followed by some material being placed before the respondent after which the pre-revisional notices came to be issued challenge to which failed before the Single Judge whose order has now been confirmed by a Hon'ble Division Bench. Therefore, in this view of the matter, reliance placed on Emcee Chemicals Vs. The Registrar, Tamil Nadu Taxation Special Tribunal in W.P.Nos.8766 to 8768 of 2000 ie., Emcee Chemicals case principle to say how the assessing officer should proceed which has been reiterated in the subsequent 28.04.2021 order of Hon'ble Division Bench is now not available to the writ petitioner. Much water has flow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2010) 8 SCC 110] and K.C.Mathew [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. reported in (2018) 3 SCC 85] has repeatedly held that when it comes to Revenue matters [ie., fiscal Statutes] alternate remedy rule has to be applied with utmost rigour. These three case laws mentioned here do not make a exhaustive list, they are only illustrative and what I have mentioned are oft quoted judgments for the proposition that alternate remedy rule has to be applied with utmost rigour in fiscal Statutes. 18. Relevant paragraph in Dunlop India case is paragraph No.3 and the same reads as follows: '' 3. ....... Article 226 is not meant to shortcircuit or circumvent statutory procedures. It is only where statutory remedies are entirely illsuited 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling 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 and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' (underlining made by this Court to supply emphasis and highlight)' 20. To be noted in paragraph No.10 of K.C.Mathew case, the Satyawati Tondon case law has been extracted, reproduced and reiterated and therefore, I deem it appropriate not to burden this order with extracts from Satyawati Tondon case. 21. I find that the above proposition applies in all fours to the case on hand as the matter does not fall under any of the exceptions to the alternate remedy rule. To be noted, the exceptions have been adumbra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'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 Division Bench has been reproduced, I would not venture into elaborating further. Suffice to say that this has been clearly captured in paragraph No.6 of the order of Hon'ble Division Bench dated 28.10.2021. 23. The narrative thus far, discussion and dispositive reasoning set out supra draws the curtains on the captioned four writ petition. In other words, the campaign of the writ petitioner qua the impugned orders in the captioned four writ petitions fail and the writ petitions are dismissed albeit making it clear that if the writ petitioner chooses the alternate remedy route and files statutory appeals, the same will be considered (subject of course to limitation and pre-deposit condition) by the appellate authority on its own merits and in accordance with law. 24. As a concluding remark, this Court also makes it clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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