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TMI Blog2008 (7) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of final assessment for the year 2003-04. The petitioner produced the accounts and on January 31, 2007 pre-assessment notice granting exemption towards the second sales of petrol and diesel and labour charges incurred in the execution of works contract. The second respondent in his notice proposed to assess the taxable turnover of Rs. 7,55,39,983. The petitioner filed objection on March 29, 2007. After considering the said objection final assessment order was passed on April 23, 2007 assessing the petitioner's total and taxable turnover of Rs. 59,68,38,597 and Rs. 7,47,64,812. The second respondent further issued a notice of revision of assessment for the year 2003-04 on May 25, 2007 based on the inspection of the enforcement wing officials on March 3, 2004 for suppression of Rs. 19,90,11,084. The petitioner filed an objection on June 18, 2007 and prayed for personal hearing. Again the revision of assessment notice was issued on June 18, 2007 proposing to levy tax on the deemed sale value of machineries, etc., for which the petitioner submitted objections on July 5, 2007. Again another revision of assessment notice dated October 26, 2007 was issued for which also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the appellate authority, who will be in a position to render a factual finding. There is no controversy with regard to the maintainability of the writ petition though alternative remedy is available, and it depends upon the facts of each case and it is a rule of discretion/convenience. In this case, the facts are disputed by the respondent and the records are to be perused to find out the true facts. The learned Additional Government Pleader for the respondents contended that effective and adequate opportunity was given to the petitioner before passing the final assessment orders and principles of natural justice is not violated and therefore the petitioner can very well challenge the assessment orders of the respondent before the Appellate Assistant Commissioner under section 31 of the TNGST Act, 1959. Section 31(3) mandates the Appellate Assistant Commissioner to dispose of the appeal in the following manner: "31. (3) In disposing of an appeal, the Appellate Assistant Commissioner may, after giving the appellant a reasonable opportunity of being heard, and for the sufficient reasons to be recorded in writing- (a) in the case of an order of assessment- (i) confirm, reduce, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highlighted by this court in a large number of cases relating to exhaustion of alternative remedy. Additionally the High Court did not even refer to the judgment of another Division Bench for the assessment year 1997-98 and assessment year 1998-99 in respect of ICI India Ltd. In any event the High Court ought to have referred to the ratio of the decision in the said case. That judicial discipline has not been adhered to. Looked at from any angle, the High Court's judgment is indefensible and is set aside." (b) A Division Bench of this court in the decision in Nivaram Pharma Pvt. Ltd. v. CEGAT, Madras reported in [2006] 205 ELT 9 considered similar issue of by-passing alternate remedy in tax matters. In paragraphs 5 to 14 the Division Bench held as follows: "5. It is well-settled by a series of decisions of the Supreme Court that particularly in tax matters there should be no short circuiting of the statutory remedies, vide Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315; AIR 1983 SC 603, Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited [1985] 19 ELT 22 (SC); AIR 1985 SC 330, etc. 6.. It is well-settled that, when there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.' 9.. In C.A. Abraham v. Income-tax Officer [1961] 41 ITR 425 (SC); AIR 1961 SC 609, H.B. Gandhi, Excise and Taxation Officer-CumAssessing Authority v. Gopinath & Sons [1990] 77 STC 1; [1992] Suppl 2 SCC 312 and in Karnataka Chemical Industries v. Union of India [1999] 113 ELT 17; [2000] 10 SCC 13 the Supreme Court held that where there is a hierarchy of appeals provided by the statute the party must exhaust the statutory remedies before resorting to writ jurisdiction. All these decisions are related to taxing statutes, and are hence apposite to the present context. 10.. In Sheela Devi v. Jaspal Singh AIR 1999 SC 2859 and Punjab National Bank v. O.C. Krishnan [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. 11.. In Union of India v. T.R. Verma AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Revenue matters, the taxing statute itself is a complete code and the writ court should not ordinarily interfere unless the assessee had exhausted all his statutory remedies. In view of this well-settled principle, we direct the appellant to file an appeal within a period of three weeks from today before the appellate authority . . ." (d) In the decision of Sharda Industries v. Commercial Tax Officer, Chennai reported in [2008] 14 VST 276 (Mad) similar view was taken by a learned single judge (M. Jaichandren J). The learned Additional Government Pleader submitted that the said view of the learned single judge was confirmed by a Division Bench. In view of the settled legal position, i.e., disputed facts cannot be gone into in a writ petition and in tax matters wherever alternate remedy is provided, writ petition shall not be entertained, I am of the view that these writ petitions challenging the orders of assessment made by the respondent, (1)Reported as chophard Builders (P) Ltd. v. Deputy Commercial Tax Officer [2009] 22 VST 126 (Mad). are not maintainable and the petitioner is bound to file appeals against the said orders of assessment as per section 31 of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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