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2016 (5) TMI 886 - MADRAS HIGH COURT

2016 (5) TMI 886 - MADRAS HIGH COURT - [2016] 92 VST 464 (Mad) - Seeking directions to pass a fresh assessment order - Assessment order passed without providing the opportunity to the petitioner to prove their case, without verifying the books of accounts and also without conducting an enquiry as contemplated under Section 27(2) of the TNVAT Act - Held that:- this Court is of the considered view on the basis of the detailed findings of the respondent that it is crystal clear that the petitioner .....

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lers from whom purchases were made were in existence and the goods were moved from the place of purchase to the place of the petitioner. Since the petitioner has miserably failed to prove the same, the respondent has passed the impugned order. Also the petitioner without availing the statutory remedy of appeal, has filed this writ petition, which is not maintainable in the absence of any violation of principles of natural justice or where the order under challenge is wholly without jurisdiction .....

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natural justice. Further, when the alternative statutory remedy is available, the writ petition cannot be entertained, except for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. Further, if effective and adequate opportunity was given to the dealers before passing the final assessment orders and principles of n .....

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, while dismissing the writ petitions, liberty is granted to the petitioner to approach the appellate authority, if they desire so, within 30 days from the date of receipt of a copy of this order. - Decided against the petitioner - W.P.Nos.724 and 725 of 2016, W.M.P.Nos.540 and 541 of 2016 - Dated:- 2-3-2016 - R. Mahadevan, J. For the Petitioner : Mr. P. Rajkumar For the Respondents : Mr. S. Manoharan Sundaram Additional Govt. Pleader ORDER These writ petitions have been filed to issue a Writ .....

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writ petitions, are as follows: 2.1. The claim of the petitioner is that, they, being the registered dealers in SS Circles, SS Patti and SS Magnet Sheets, used to buy goods from local registered dealers on payment of Value Added Tax (in short 'VAT') and effect further sales inside the State and claimed Input Tax Credit (in short 'ITC') in its returns and adjusted the same while paying output tax. 2.2. While so, the place of business of the petitioner was inspected by the Enforcem .....

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ons of the inspecting officials and refused to sign in the statement, dated 25.8.2014 prepared by them and therefore, it was sent by post to the petitioner, who filed their objections. 2.4. However, according to the petitioner, without conducting an enquiry as contemplated under Section 27 of the TNVAT Act, the respondent had straight away issued notices, dated 20.02.2015 for the assessment years 2012-2013 and 2013-2014 to the petitioner based on the proposals received from the inspecting offici .....

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celled, it would not take away their right to claim ITC. 2.6. On receipt of the objections, dated 12.05.2015, the respondent issued notices, dated 15.05.2015 stating that the details requested by the petitioner have already been furnished in the notices, dated 20.02.2015 and if any details to be required by the petitioner, the same will be provided and requested the petitioner to appear for personal hearing on 10.06.2015. 2.7. On receipt of the notice, dated 15.05.2015, the petitioner through a .....

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e not been called upon to appear for personal hearing and in such circumstances, the personal hearing would not serve any purpose. 2.8. Thereafter, the respondent issued a notice, dated 01.09.2015 alleging that at the time of personal hearing, only the office boy of the petitioner appeared and submitted a cover containing the written arguments and no materials, such as purchase and sale bills, bank statement, stock register, balance sheet, trading, profit and loss account and other accounted rec .....

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petitioner and without giving them any opportunity to prove their case, has passed the impugned orders, the petitioner has come forward with the above writ petitions. 3. Heard Mr.P.Rajkumar, learned Counsel appearing for the petitioner and Mr.S.Monaharan Sundaram, learned Additional Government Pleader appearing for the respondent. 4. The learned Counsel for the petitioner has contended that the respondent is wrong in passing the impugned orders without verifying the books of accounts of the peti .....

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the details from the selling dealers as per Section 85 of the TNVAT Act, the impugned orders came to be passed. Further, the respondent went wrong in passing the impugned orders reversing the ITC invoking Section 19(13) of the TNVAT Act, without providing the details of the enquiry, which revealed that the earlier sellers were only bill traders. 7. He, therefore, argued that the respondent erred in reversing the ITC for the alleged reason that the earlier sellers have not reported their transac .....

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Assessment Circle, Chennai and another reported in (2013) 60 VST 283 (Mad). 9. On the other hand, the learned Additional Government Pleader appearing for the respondent has submitted that the respondent found various defects and that the objections filed by the petitioners were not acceptable and therefore, after affording an opportunity of being heard, the impugned orders were passed and as such, no interference by this Court is warranted. 10. Further, the learned Additional Government Pleader .....

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ntion to evade payment of tax on their actual local and inter-state sales by procuring the bills from the bill traders and therefore, the entire claim of ITC is incorrect and ineligible and that it was reversed under Section 27(2) of the TNVAT Act, 2006. 12. Further, the learned Additional Govt. Pleader has contended that since the assessment orders have been passed in terms of the provisions of the TNVAT Act, 2006 and following the principles laid down by the Apex Court as well as this Court, t .....

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the legality of the same. 15. A careful perusal of the impugned orders reveals the following defects: a. Invoice Mis-match b. Purchases effected from Registration Certificate cancelled Dealers c. Cross Verification revealed huge evasion of tax. d. Purchase Omission e. Bill trading, without payment of tax. 16. In respect of Defect No.1, the respondent has found that the dealers have effected purchases from the dealers who have not filed the returns or reflected the sales in their returns and the .....

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led by the dealers under Section 19(15) of the TNVAT Act, 2006. 18. Regarding Defect No.3, the respondent has found that the burden of proving the genuineness of transaction lies on the dealers as per Section 17(2) of the TNVAT Act 2006. Since, the dealers have not produced proper documentary evidence in support of their transaction, the liability of tax was ₹ 31,09,880/-. Therefore, the ITC availed by the dealers under Section 27(2) of the TNVAT Act, 2006 was reversed and penalty was levi .....

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same and arrived at the above conclusions accordingly. 20. In regard to Defect No.1 is concerned, the respondent has concluded that the sellers are in the habit of issuing the invoices to the dealers/beneficiaries and there was no actual transaction of goods. Therefore, it is the duty of the dealer to prove the burden of proof under Section 17(2) of the TNVAT Act, 2006. Instead of proving their burden, they simply stated that they have purchased the goods and obtained the original invoice and t .....

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invoices without any actual transaction of goods and issuing bills and invoices. Further, the respondent concluded that the contention of the dealers that they have furnished the original invoices as per Section 19(1) of the Act and eligible to avail the ITC as per Section 19(10)(a) and Rule 10(2) of the Act and Rules, is not acceptable and it is for the dealers to prove the burden of proof for the claim of ITC under Section 17(2) of the TNVAT Act, 2006. Further, the ITC availed by any registere .....

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sional and the assessing officer is empowered to revoke the same if it appears to the assessing authority to be incorrect, incomplete or otherwise not in order as per Section 19(16) of the Act. Further, as per Section 19(15), where, a registered dealer without entering into a transaction of sale, issues an invoice, bill or cash memorandum to another registered dealer with the intention to defraud the Government revenue, the assessing authority, after giving reasonable opportunity of being heard, .....

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Therefore, it is the stand of the respondent that reasonable opportunities were given to the dealers to put forth their objections on the reversal of ITC. 22. Therefore, it can be well ascertained that the selling dealers' registration have been cancelled and also some of the dealers have stopped their business within the span of three months to within one year when the turnover crossed more than ₹ 100 Crores. The Registration Certificate cancelled dealers have not contested against th .....

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ss of buying and selling the goods, but were solely issuing bills and invoices without any actual transaction of goods. 23. At this juncture, it is useful to refer to Section 4 of the Sale of Goods Act, 1930, which defines the Sale and Agreement to sale as hereunder: Sale and agreement to sell (1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to buyer for a price. There may be a contract of sale between one part owner and anoth .....

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ng sufferance of tax at earlier stage. 25. It is seen that the petitioner i.e., purchaser has failed to furnish the evidences of actual transaction of goods in respect of the transactions, they entered into. Accordingly, the provisions of Section 19(15) of the TNVAT Act have been invoked in reversing the illegal claim of ITC. 26. With regard to Defect No.3, the respondent arrived at the conclusion that the burden of proving the genuineness of transaction lies on the petitioner as per Section 17( .....

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lved in the defect No.1 and 2 and therefore, the respondent concluded that the claim of ITC is liable to be reversed for wrong availment of Input of Tax Credit under Section 27(2) read with Section 19(1) of the TNVAT Act, 2006 and penalty also leviable under Section 27(4) of the Act. 27. According to the respondent, regarding the bill traders (S.Nos.1 to 29), their TIN No. was either cancelled by the respective registering authority or business was stopped by the dealers and actually, there was .....

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s Ltd and Bhandari Steels Ltd) for 78.01 Crores. In all these cases, though the dealers claimed purchase of goods and claimed ITC, there was no proof for actual transaction of goods and payment details produced. 28. Moreover, the dealers have effected the purchases from the R.C. cancelled dealers and there was a mismatch and cross verification of other end dealers involving various provisions of Sections 19(13) and 19(15) and 27(2) of the TNVAT Act, 2006 and the said fact revealed that all the p .....

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y procuring the bills from the cancelled dealers/bill traders/stopped business dealers by claiming and adjusting the huge amount of ITC of ₹ 5,90,74,095/- (Rupees Five Crores Ninety Lakhs Seventy Four Thousand and Ninety Five only). Therefore, according to the respondent, the entire claim of ITC is incorrect and ineligible and thus, to be reversed under Section 27(2) of the TNVAT Act, 2006. 30. Thus, it is very clear that the dealers have paid tax of ₹ 55,402/- (Rupees Fifty Five tho .....

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the entire ITC of ₹ 5,90,74,095/- (Rupees Five Crores Ninety Lakhs Seventy Four thousand and Ninety Five only) has been reversed under Section 27(2) of the TNVAT Act, 2006. 32. In respect of Defect No.4, the respondent has concluded that with regard to sales suppression of inter-state purchase of ₹ 9,59,56,584 and proposing to higher rate of tax at 14.5% of ₹ 1,38,55,705, the contentions of the dealers are that they have properly accounted for in their books of accounts regardi .....

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dealers and adjusted the ITC on the sale of inter-state purchased goods also. Therefore, the suppression of sales is found to be correct and proposals for levying tax on the turnover of ₹ 9,55,56,584/- at 14.5% of ₹ 1,38,55,705/- has been confirmed. 33. Hence, the respondent arrived at a conclusion that the reasons assigned by the dealers are not acceptable and overruling the objections, the entire ITC claimed/availed/adjusted for ₹ 5,90,74,095/- for the year 2012-2013 against .....

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ivision Bench of this Court has held as follows: "7. .... As ruled by the Judgment, in the present case, the Assessing Officer, the Joint Commissioner as well as the Special Tribunal recorded a very clear finding that the three selling dealers were non-existing and never carried on any business. The addresses, both business address and residential address given in the Registration Certificates are bogus. The summons sent to the addresses were returned with postal endorsement "No such a .....

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ATE OF TAMIL NADU VS. RAMAN & CO. reported in (1994) 93 STC 1994 is also to the same effect. In the absence of any materials placed by the petitioner to prove the contrary either before the authorities or even before this Court, there is no scope for interference by this Court." (ii) The State of Tamil Nadu rep. by The Deputy Commissioner (CT), Chennai (North) Division v. Tvl. Gupta Iron and Steel Company [Tax Case (Revision) Nos.1361 and 1362 of 2006, decided on 19.01.2012], wherein th .....

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the issue and also concurred with the finding of the assessing authority in holding that the dealers in question did not have the valid registration on the date when the purchases were made by the assessee. ... 7. It is the contention of the learned counsel for the respondent-assessee that once the invoices were produced by the assessee to show that the purchases had been made, the burden of proof under Section 10 of the Tamil Nadu General Sales Tax Act lies only with the dealer and not on the .....

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ate of sale, they will be only called as bill traders. In such circumstances, the question of placing reliance on Section 10 by the assessee does not arise. When the exemption of tax on second sales is sought to be claimed by the assessee, it is for the assessee to establish that the transactions were bona fide on two aspects, namely, (i) that the purchases were made by the assessee and the goods so purchased had suffered tax already and (ii) that such purchases were made from the dealers whose .....

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of the considered view on the basis of the detailed findings of the respondent that it is crystal clear that the petitioner with an intention to evade payment of tax produced the bogus bills obtained from the so-called dealers, who were not in existence and that their registrations have been cancelled and as there was no transaction of goods, the respondent has passed the impugned order in a detailed manner, after affording an opportunity of being heard to the petitioner. 36. In these circumsta .....

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nd that the retrospective cancellation of the dealers would not affect the purchases made from such dealers by the petitioner and that the bills issued by them cannot be held to be bogus bills, however, in the considered opinion of this Court, those decisions would not lend any support to the case of the petitioner. 38. In this connection, it would be more relevant to reproduce the conclusion of the respondent in respect of the Defect No.1, which reads as under: From the above facts, it is well .....

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d the goods and obtain the original invoice, and therefore, requested the assessing officer to obtain the details from the respective assessing officers of the vendors is not correct and untenable. Further, if the above selling dealers are genuine dealers, as and when their registration had been cancelled, they would have filed the Revision Petition against the proceedings of the retrospective cancellation of the registration. But the registration cancelled dealers were not in existence and mere .....

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hout availing the statutory remedy of appeal, has filed this writ petition, which is not maintainable in the absence of any violation of principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute, is under challenge. 41. The next question raised by the learned Counsel for the petitioner is that the respondent has passed the impugned order in violation of principles of natural justice by denying the opportunity of being heard to the .....

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on 10.6.2015. On receipt of the notice, dated 15.5.2015, the petitioner through a letter, dated 9.6.2015 sought for an extension of time to appear for personal hearing. The petitioner thereafter send a written submission, dated 22.6.2015 through its Assistant Manager to the respondent. Since the respondent had refused to receive the same, it was sent through the registered post on 23.6.2015 to the respondent. 43. Whereas the respondent, in the impugned order, has stated as under: The objections .....

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e dealers did not turn up for personal hearing. A second opportunity of personal hearing and production of all details such as books of accounts, Balance Sheet etc., was also given to the dealers vide this office notice dated 22.6.2015 with a request to appear in person on 2.7.2015 at 11.30 a.m. The notice was received by the dealers on 23.6.2015 and they did not turn up for personal hearing before the undersigned on 2.7.2015. Instead, the dealers have again, in their letter, dated 23.6.2015 sta .....

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f the dealer in their letter, dated 22.6.2015, again, a notice for personal hearing was given to the dealer vide this office notice, dated 1.9.2015 informing them that no authorised representative/Proprietor/legal representatives have appeared before the undersigned and only office boy submitted the written argument and no materials were produced for check of accounts. Therefore, requested to appear in person on 14.9.2015 at 11.30 a.m. with the connected records for check of accounts. To the not .....

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opinion of this Court that the impugned order was not passed in violation of principles of natural justice. 45. Further, when the alternative statutory remedy is available, the writ petition cannot be entertained, except for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. 46. As already stated, in the case on .....

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the alternative efficacious remedy is available. 48. In Union of India and others vs. Major General Shri Kant Sharma and another reported in (2015) 6 Supreme Court 773, while speaking on behalf of the Division Bench of the Apex Court, the Hon'ble Mr.Justice Sudhansu Jyoti Mukhopadhaya, after referring to the following decisions, has observed as under: 28. In Kanaiyalal Lalchand and Sachdev and others vs. State of Maharasthra and others, (2011) 2 SCC 782, this Court considered the question of .....

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that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd., Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories7.) 24. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala this Court had observed that: (SCC p. 175, para 30). 30. The Court while exercising its jurisdiction under Article 226 is duty-bo .....

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id law; and host of other factors. 29. In Nivedita Sharma vs. Cellular Operators Association of India and others, (2011)14 SCC 337, this Court noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Court further noticed the previous decisions of this Court wherein the Court adverted to the rule of self-restraint that writ petition will not be entertained if an effective remedy is availa .....

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s of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this pass .....

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n Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) 77. So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the p .....

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l justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. 16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes 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 .....

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alternate remedy is not maintainable is the consistent view taken by the Supreme Court and by this Court. 50. In this connection, it is fruitful to refer to some of the decisions of the Honourable Supreme Court and this Court, as under: 50.1. In C.C.T.Orissa v. Indian Explosives Ltd. reported in 2008 AIR SCW 1815, the Honourable Supreme Court set aside the order passed in a tax matter and in paragraph 7 held thus: "7. The High Court seems to have completely lost sight of the parameters high .....

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is set aside." 50.2. A Constitution Bench of the Supreme Court in G.Veerappa Pillai v. Raman and Raman Ltd., reported in AIR 1952 SC 192 held that as the Motor Vehicles Act is a self contained code and 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, reported in 1985 (19) E.L.T. 22 (SC) = AIR 1985 SC 330. .....

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ter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordi .....

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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." 50.4. In C.A.Ibrahim v. ITO reported in AIR 1961 SC 609, H.B.Gandhi v. M/s.Gopinath & Sons reported in 1992 (Suppl) 2 SCC 312 and in Karnataka Chemical Industries v. Union of India repor .....

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urt held that if the statute provides for remedy of revision or appeal, writ jurisdiction should not be invoked. 50.6. In Union of India v. T.R. Verma reported in AIR 1957 SC 882 the Honourable 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 t .....

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d High Court dismissed a writ petition challenging the provisional assessment orders under the U.P.Trade Tax Act on the ground of alternative remedy under Section 9 of that Act. Against the aforesaid judgment, Special Leave Petition was filed before the Supreme Court which has been dismissed. 50.9. Same is the view taken by different Division Benches of this Court in W.A.No.1555 to 1557 of 2007 dated 10.12.2007; W.A.Nos.749 & 750 of 2006 dated 22.6.2006 and W.A.Nos.590 & 591 of 2008 date .....

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is provided. We just remind ourselves of the repeated directions given by the Apex Court that 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. 3. 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. ......." 50.10. A Division Bench of this Court in Nivaram Ph .....

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op India Limited, 1985 (19) E.L.T. 22 (SC) = AIR 1985 SC 330, etc. 6. It is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this Court under Article 226 of the Constitution should not be invoked. This principle applies with greater force regarding tax proceedings. As observed by the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa - AIR 1983 SC 603: "Where a right or liability is created by a statute which gives a special remedy for enf .....

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