TMI Blog2017 (11) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period. Whereas, in Section 54 of the Act, any person objecting to an order passed Or Proceeding recorded under this Act for which an appeal has not been provided for in section 51 or section 52 may within a period of thirty days from the date on which a copy of the order or proceeding was served on him, in the manner prescribed file an application for revision of such order or proceeding to the Joint Commissioner: Provided that the Deputy Commissioner may within a further period of thirty days admit an application for revision presented after the expiration of the first mentioned period of thirty days, if he is satisfied that the applicant had sufficient cause for not presenting the application within the first mentioned period. If according to the appellant, revision under Section 54 of the Act is the only remedy available to the appellant and not an appeal as indicated, it is always open to the petitioner to challenge the assessment orders for the years 2012-2013, 2013-2014, 2014-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , instant writ appeals have been filed. Though Mr.C.Baktha Siromoni, learned counsel for the appellant, reiterated the same facts and urged this court to entertain the appeals, this court is not inclined to do so for the reason that, on more than one occasion, the Hon'ble Supreme Court, as well as this court, held that, ordinarily, writ petitions should not be entertained when the statutes provide for an effective and alternative remedy, moreso, in revenue matters. Reference can be made to few decisions, in this regard. 3.1. In Union of India v. T.R.Verma, AIR 1957 SC 882, the Hon'ble 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 to 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 petition under Article 226 of the Constitution, unless there are good grounds to do, otherwise. 3.2. In C.A.Ibrahim v. ITO, AIR 1961 SC 609, H.B.Gandhi v. M/s. Gopinath sons, 1992 (Suppl) 2 SCC 312 and in Karnataka Chemical Industries v. Union of India, 1999 (113) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the high Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. Vs. State of Haryana (1985) 3 SCC 267, this Court has noticed that if an appeal is from Caesar to Caesar's wife , the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act, as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36. (iii). When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma Vs. Cellular Operators Assn. of India (2011) 14 SCC 337. (iv). 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 statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma Vs. Cellular Operators Assn. of India (2011) 14 SCC 337.) 3.8. In Veerappa Pillai Vs. Raman Raman Ltd {1952 SCR 583}, CCE Vs. Dunlop India Ltd {(1985) 1 SCC 260}, Ramendra Kishore Biswas Vs. State of Tripura {(1999) 1 SCC 472, Shivgonda Anna Patil Vs. State of Maharashtra {(1999) 3 SCC 5}, C.A.Abraham Vs. ITO {(1961) 2 SCR 765}, Titaghur Paper Mills Co Ltd., Vs. State of Orissa {(1983) 2 SCC 433}, H.B.Gandhi Vs. Gopi Nath Sons {1992 Supp (2) SCC 312}, Whirlpool Corpn Vs. Registrar of Trade Marks {(1998) 8 SCC 1}, Tin Plate Co. of India Ltd., Vs. State of Bihar {(1998) 8 SCC 272}, Sheela Devi Vs. Jaspal Singh {(1999) 1 SCC 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his purchases of taxable goods specified in the First Schedule : [Provided that the registered dealer, who claims input tax credit, shall establish that the tax due On purchase of goods has actually been paid in the manner prescribed by the registered dealer who sold such goods and that the goods have actually been delivered Provided further that the tax deferred under section 32 shall be deemed to have been paid under this Act for the purpose of this sub-section.] (2) Input tax credit shall be allowed for the purchase of goods made within the State from a registered dealer and which are for the purpose of - (i) re - sale by him within the State; or (ii) use as input in manufacturing or processing of goods in the State; or (iii) use as containers, labels and other materials for packing of goods in the State; or (iv) use as capital goods in the manufacture of taxable goods. (v)4 [Omitted] sale in the course of inter - State trade or commerce falling under sub - section (1) of section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956)]; (v) sale in the course of inter-State trade or commerce falling under sub-section (1) and (2) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of taxable goods in the manner prescribed.] (7) No registered dealer shall be entitled to input tax credit in respect of - (a) goods purchased and accounted for in business but utilised for the purpose of providing facility to the proprietor or partner or director including employees and in any residential accommodation; or (b) purchase of all automobiles including commercial vehicles, two wheelers and three wheelers and spare parts for repair and maintenance thereof, unless the registered dealer is in the business of dealing in such automobiles or spare parts; or (c) purchase of air - conditioning units unless the registered dealer is in the business of dealing in such units. (8) No input tax credit shall be allowed to any registered dealer in respect of any goods purchased by him for sale but given away by him by way of free sample or gift or goods consumed for personal use. (9) No input tax credit shall be available to a registered dealer for tax paid Omitted [or Payable] at the time of purchase of goods, if such (i) goods are not sold because of any theft, loss or destruction, for any reason, including natural calamity. If a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which credit has been availed of are duly accounted for, subject to the satisfaction of the assessing authority. (15) Where a registered dealer has purchased any taxable goods from another dealer and has availed input tax credit in respect of the said goods and if the registration certificate of the selling dealer is cancelled by the appropriate registering authority, such registered dealer, who has availed by way of input tax credit, shall pay the amount availed on the date from which the order of cancellation of the registration certificate takes effect. Such dealer shall be liable to pay, in addition to the amount due, interest at the rate of two per cent, per month, on the amount of tax so payable, for the period commencing from the date of claim of input tax credit by the dealer to the date of its payment. (16) The input tax credit availed by any registered dealer shall be only provisional and the assessing authority is empowered to revoke the same if it appears to the assessing authority to be incorrect, incomplete or otherwise not in order. (17) If the input tax credit determined by the assessing authority for a year exceeds tax liability for that year, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2012, notified by GO.No.82. as effective from 19th June2012, this sub - section was as under : (2) The assessing authority shall accept the returns submitted for the year, by the dealer, if the returns are accompanied by the proof of payment of tax and the documents prescribed, and on such acceptance, the assessing authority shall pass an assessment order. (3) Notwithstanding anything contained in sub - section (2), not exceeding twenty per cent of the total number of such assessments shall be selected by the Commissioner in such manner as may be prescribed for the purpose of detailed scrutiny regarding the correctness of the returns submitted by the dealer and in such cases, revision of assessment shall be made, wherever necessary. (4) If no return is submitted by the dealer for any period of the year or if the return filed is in complete or incorrect, or if not accompanied with any of the documents prescribed or proof of payments of tax, the assessing authority shall, after making such enquiries as it may consider necessary, assess the dealer to the best of its judgment, subject to such conditions as may be prescribed, after the completion of that year: Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn in time was due to reasons beyond the control of the applicant, cancel the assessment made and make a fresh assessment on the basis of the return submitted: Provided that no application shall be entertained under this sub - section unless it is accompanied by satisfactory proof of the payment of tax admitted by the applicant to be due or any such instalment thereof as might have become payable, as the case may be. (b) If the amount of tax on the basis of the cancelled assessment has already been collected and if the amount of tax arrived at as a result of the fresh assessment is different from it, any amount over paid by the dealer shall be refunded to him without interest, or the further amount of tax, if any, due from him shall be collected in accordance with the provisions of this Act, as the case may be. (c) Penalty, if any, imposed and collected under sub - section (5), shall be refunded to the dealer without interest on cancellation of the order of original assessment. 9. Section 51 of the TNVAT Act, 2006, deals with filing of an appeal to the Appellate Deputy Commissioner and it reads as follows: 51. Appeal to Appellate Deputy Commissioner. (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the order of assessment against which the appeal has been preferred: Provided that the Appellate Deputy Commissioner may, in his discretion, give such directions as he thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to his satisfaction, in such form and in such manner as may be prescribed: Provided further that the directions given under the first proviso shall stand vacated, if no order is passed under sub - section (3) within a period of one hundred and eighty days of the issue of order under the said proviso. 10. Section 52 deals with filing of an appeal to the Appellate Joint Commissioner 52.Appeal to Appellate Joint Commissioner: (1) Any person objecting to an order passed by the Deputy Commissioner (Assessment) under section 22, section 24, section 26, sub - sections (1), (2), (3) and (4) of section 27, section 28, section 29, section 34 or sub - section (2) of section 40 may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal to the Appellate Joint Commissioner having jurisdiction: Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacated, if no order is passed under sub - section (3) within a period of one hundred and eighty days of the issue of order under the said proviso. As per Section 51 of the Act, any person objecting to the order passed by the appropriate authority under Section 22, Section 24, Section 26, sub - sections (1), (2), (3) and (4) of section 27, section 28, section 29, section 34 or sub - section (2) of section 40 other than an order passed by a Deputy Commissioner (Assessment) may, within a period of thirty days from the date on which the order was served on him, in the manner prescribed, appeal to the Appellate [Deputy] Commissioner having jurisdiction: Provided that the Appellate Deputy Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period. Whereas, in Section 54 of the Act, any person objecting to an order passed Or Proceeding recorded under this Act for which an appeal has not been provided for in section 51 or section 52 may within a period of thirty days from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thstanding that an application has been preferred under sub - section (1), the tax, fee or other amount shall be paid in accordance with the order or proceeding against which the application has been preferred: Provided that the Joint Commissioner may in his discretion give such directions as he thinks fit, in regard to the payment of such tax, fee or other amount before the disposal of revision, if the applicant furnishes sufficient security to his satisfaction in such form and in such manner as may be prescribed. (5) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. 13. Section 84 of the TNVAT Act, 2006, reads thus: 84. Power to rectify any error apparent on the face of the record. -- (1) An assessing authority or an appellate or revising authority (including the Appellate Tribunal) may, at any time within Six years from the date of any order passed by it, rectify any error apparent on the face of the record: Provided that no such rectification which has the effect of enhancing an assessment or any penalty shall be made unless such authority has given notice to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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