TMI Blog2014 (1) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, Since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first - appellants have to approach the appellate authority under Section 51 of the Tamil Nadu Value Added Tax Act, 2006. Want of jurisdiction can also be raised before the appellate authority - Decided against assessee. - Writ Appeal Nos.2408, 2409 of 2013 & Connected Miscellaneous Petitions - - - Dated:- 9-12-2013 - N. Paul Vasanthakumar And P. Devadass,JJ. For the Appellant : Mr. R. Natarajan, Senior Counsel for Mr. N. Sriprakash For the Respondents : Mr. A. L. Somayaji, Advocate General assisted by Mr. A. R. Jayapratap, AGP (Taxes) JUDGMENT N. Paul Vasanthakumar, J. These writ appeals are preferred by the writ petitioners in W.P.Nos.30351 and 30352 of 2013, which were dismissed by the learned single Judge by common order dated 28.11.2013 on the ground of availability of alternate remedy of filing appeal before the Appellate Authority against the assessment orders passed under Section 51 of the Tamil Nadu Value Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneously treated that the installation and maintenance of telecommunication equipment are not separate business as if the buyer and seller are in Tamilnadu; that when the agreement having been approved on account of the scheme of the agreement sanctioned by this Court, particularly with regard to the contention that the element of sale of goods was even if it is there, no such sale took place in the State of Tamil Nadu; that the Assessing Authority opined that the appellants are dealing in mobile service and taxable goods purchased for tower have been installed at various sites and they become capital goods and with the help of those capital goods internet mobile services are being provided; and that the installation and maintenance of the telecommunication equipments is not a separate business. 3. The issue raised before the learned single Judge was as to whether a composite sale of running business of the concern would attract the provisions of the Tamil Nadu Value Added Tax Act, 2006, particularly when the Assessing Officer took a stand that the appellants/writ petitioners used to sell some of the assets every year as in the case of sale during the year 2010 treating it as tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng appeal 25% pre-deposit is mandatory. Therefore by taking note of the hardship faced by the appellant, the writ petition may be entertained. Learned Senior Counsel also relied on some judgments in support of his contentions. 8. Mr.A.L.Somayaji, learned Advocate General on the other hand submitted that in tax matters the hardship plea is not maintainable as Taxing Statutes should be viewed strictly and the Appellate Authority will definitely consider the contentions raised by the appellants as held by the learned single Judge, which requires no interference. The learned Advocate General submitted that the order of the learned single Judge is based on the decisions of the Hon'ble Supreme Court. 9. We have considered the rival submissions of the respective learned Senior Counsel appearing for the appellants as well as the learned Advocate General appearing for the respondents. 10. The appellants are not disputing the availability alternate statutory appeal under Section 51 of the Tamil Nadu Value Added Tax Act, 2006. The points urged by the learned senior Counsels for the appellants are that if the appellants are forced to file appeal, they have to deposit 25% of the tax asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. State of Orissa); (iii) (2012) 3 Scale 359 (Union of India v. Guwahati Carbon Ltd.) (iv) (2013) 10 Scale 326 (CIT v. Chhabil Dass Agarwal) The said approach of the learned single Judge cannot be found fault with, particularly with respect to the disputed question of facts. In this respect the following decisions can also be usefully cited. (a) A Constitution Bench of the Supreme Court in G.Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 held that as the Motor Vehicles Act is a self-contained code and Act itself provides for a forum for appeal/revision, the writ jurisdiction should not be invoked in matters relating to its provisions. A similar view was taken in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited, 1985 (19) E.L.T. 22 (SC) : AIR 1985 SC 330. (b) In Union of India v. T.R. Verma, AIR 1957 SC 882 the Supreme Court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituations, 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 Art.226 of the Constitution. But, then the Court must have good and sufficient reason to by pass 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 Art.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." (g) In Sheela Devi v. Jaspal Singh, AIR 1999 SC 2859 and Punjab National Bank v. D.C.Krishna, 2001 (6) SCC 569 the Supreme Court held that if the statute provides for remedy of revision or appeal, writ jurisdiction should not be invoked. (h) In A. Venkatasubbiah Naidu v. S.Chellappan, (2000) 7 SCC 695 (vide para 22) the Supreme Court deprecated the practice of exercising the writ jurisdiction w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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