TMI Blog2017 (10) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... the Writ Petition filed by the petitioner cannot be entertained. Despite there being an alternative remedy, Writ remedy under Article 226 of the Constitution can be invoked only under such circumstances when principles of natural Justice is violated on the face of the record. In the present case, the appellant has to avail the appeal remedy under the statute, which cannot be given a go-by, by invoking the Writ Jurisdiction directly. Therefore, no interference is warranted against the order passed by the learned Single Judge. Appeal dismissed - decided against appellant. - W.A. No. 797 of 2017 - - - Dated:- 19-9-2017 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Appellant : Mr. Joseph Prabhakar For the Respondent : Mr. K. Venkatesh ORDER This Writ Appeal has been filed by the appellant challenging the order of this Court dated 28.06.2016 passed in W.P.No.35782 of 2015. 2. Brief facts of the case of the appellant are as follows: 2.1 Appellant is a Central Public Sector Undertaking engaged in the business of transmission, distribution and marketing for Natural Gases and is registered with the respondent assessment circle under TNVAT Act, 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of receipt of refund amount. However, the Respondent did not consider the request and passed an order under Section 22(2) of the TNVAT Act, 2006 assessing the Appellant at 12.5% vide 0rder dated 25.06.2008. 2.6 Aggrieved by Order dated 25.06.2008 (VAT), the Appellant filed an Appeal before the First Appellate Authority and the First Appellate Authority vide its order dated 23.03.2009 dismissed the appeal. 2.7 Thereafter, the Appellant filed Second Appeal before the Sales Tax Appellate Tribunal. The Tribunal allowed Appeal T A No.23 of 2010 and passed an order dated 21.04.2011 holding that rate of VAT for Natural Gases is 4% and accordingly, ordered grant of refund to the Appellant. 2.8 Subsequent to the Tribunal's order dated 21.04.2011, the Appellant filed revised returns for January-March 2007 on 15.11.2011 under TNVAT Act, and carried forward the excess ITC of ₹ 1,52,01,304/- for the year 2006-2007. 2.9 Whereas, the Respondent passed an order dated 23.06.2014 for the year 2006-07 and assessed the transactions of Sale of Natural Gases at 12.5% by taking a new ground that the power producers are not entitled to issue Certificate under Rule 6(3)(b) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, submit that the Appellant is entitled to get refund of ₹ 1,52,01,304/-. Rejection of refund is in violation of Article 265 of the Constitution, which mandates that no tax shall be levied or collected, except by authority of law. 2.14 Aggrieved by order dated 26.06.2015 passed by the Respondent, the Appellant filed Writ Petition No.35782 of 2015 before this Court, and the said Writ Petition has been dismissed by this Court on 28.06.2016 stating that Section 41 of the TNVAT Act, 2006 was not considered by the Tribunal and when an alternative remedy was available, the Appellant could pursue the matter, in appeal. 3. Aggrieved against the order passed by this Court in W.P.No.35782 of 2015 dated 28.06.2016, the appellant has preferred this Writ Appeal by raising various grounds. 4. The learned counsel for the appellant would submit that the learned single Judge has erred in dismissing the writ petition for the following reasons:- (a) The first reason is that even assuming but not admitting that Section 41 of the Tamil Nadu Value Added Tax Act, 2006, would come in the way of refund to be granted to the appellant, still the fact that the order of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dismissed the writ petition by accepting the submission made by the respondent that the order of the Tribunal dated 21.04.2011 is of little avail to the petitioner, since the Tribunal did not take into account the provisions of Section 41 of the Tamil Nadu Value Added Tax Act, 2006 and also on the ground that the issue involves complicated and disputed questions of fact and therefore, pray this Court to dismiss the Writ Appeal. 7. We have heard the learned counsel for both sides and perused the material available on record. 8. The appellant/petitioner is Gail (India) Pvt Ltd and have challenged the order passed by the respondent/Commercial Tax Officer, Nagapattinam Assessment Circle, Commercial Tax Buildings, Nagapattinam, in CST/223494/2006-2007, TIN/330439000682/2006-07, dated 26.06.2015 by filing Writ Petition in W.P.No.35782 of 2015 before this Court. The same was disposed of by this Court, with the observation that the Court was not inclined to entertain the Writ petition against the order impugned, but inclined to direct the petitioner to avail the appeal remedy and the petitioner was given liberty to file the appeal, within a period of 30 days from the date of receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... %, vide Order dated 25.06.2008. Aggrieved by the Order dated 25.06.2008, the appellant filed an appeal before the First Appellate Authority and the First Appellate Authority, vide order dated 23.03.2009 dismissed the appeal. 11. Further contention of the appellant is that he filed Second Appeal before the Sales Tax Appellate Tribunal and the Tribunal had allowed the appeal in T.A.No.23 of 2010 and passed the order dated 21.04.2011 holding that the rate of VAT for Natural Gases is 4% and accordingly, ordered grant of refund to the Appellant. It is submitted by the learned counsel for the appellant that the said order of the Tribunal has not been challenged by the Department. Though the above said order has not been challenged by the Department, considering the submission made by the Department that there is no indication in the assessment records as to what the disputed tax would represent, the Tribunal is of the view that the Assessing Officer could be directed to consider the same and if it pertains to tax under the VAT Act 2006, suitable orders may be passed taking into consideration the claim of the assessee. 12. Subsequent to Tribunal's order dated 21.04.2011, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression correct and complete return and the power conferred upon the assessing authority to carry out reassessment, were all indications that a revision return could be filed by the assessee under the provisions of Tamil Nadu Value Added Tax Act. Therefore, the respondent might keep an open mind and examine the revised return, as otherwise the assessment order passed on February 27, 2009 might become vulnerable. In view of the above, the appellant seeks for refund of ₹ 1,52,01,304/-. However, the respondent has rejected the claim of the appellant. According to the appellant, rejection of refund is in violation of Article 265 of the Constitution, which mandates that no tax shall be levied or collected, except by authority of law. Aggrieved by Order dated 26.06.2015, the appellant has filed W.P.No.35782 of 2015 and the same was disposed of by directing the appellant to avail appeal remedy. The present Appeal is filed by the appellant, by raising various grounds, as against the order passed by the learned Single Judge. Except the ground O raised in the memorandum of grounds of appeal viz., O. It is submitted that facts are not disputed at all in this case. Refund has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules made thereunder shall apply as if such notice has been given in the first instance. (4) The powers under sub-section (1) may be exercised by the assessing authorities even though the original order of assessment, if any, passed in the matter has been the subject matter of an appeal or revision. (5) The provisions of this Act relating to appeal and revision shall apply to an order or rectification made under this Section as they apply to the order in respect of which such order or rectification has been made. 16. The authority below has considered the said submission made by the appellant and passed an order rejecting the claim as early as on 26.06.2015, which ought to have been taken on appeal, which includes an Appeal under Section 51 where forfeiture has been done under Section 41. But, challenging the above rejection order dated 26.06.2015, the appellant has filed the Writ Petition. The learned Single Judge while disposing of the Writ Petition has directed the appellant to avail the Appeal remedy and to prefer an Appeal as against the impugned order dated 26.06.2015 passed by the Commercial Tax Officer within a period of 30 days. The learned Single Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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