TMI Blog2017 (11) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... if any appeal is filed, finding to be record by us on the above, would amount to transgressing the powers of the appellate authority to address both on facts and Law. Direction of the writ Court, cannot be said to be erroneous. When subject matter is relegated to the concerned forum or the authorities concerned, as the case may be, writ Court is not bound to record a finding either on fact or law. In such a view of the matter, contentions to the counter are not tenable. On more than one occasion, the Hon'ble Supreme Court as well as this Court, consistently held that writ against the assessment orders, ought not to be interfered with, when there is an effective and alternative remedy under the taxation statute. When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation - 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. Appeal dismissed - decided against appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,22,410.00 Rs.51,20,896.00 Tax due : ₹ 51,20,896.00 ITC available : Rs.NIL Tax paid : Rs.NIL Balance : ₹ 51,20,896.00 A demand notice in Form 'O' is issued. The dealers have claimed ITC of ₹ 18,83,026/- during the assessment year 2010-11. The dealers had claimed insurance to a tune of ₹ 20,18,41,053.00 for the damage incurred due to the cyclone THANE affected in December 2011. Hence the entire credit of ITC of ₹ 18,83,026.00 is to be reversed U/s.19(9) (ii) of the TNVAT Act 2006. The claim of ITC is reversed to the extent of ₹ 18,83,026.00. There is no ITC at credit. Levy of penalty under Section 22(5) of the Act. As the dealers have wilfully not disclosed the deemed sale value of goods in the returns, it attracts levy of penalty U/s.22(5) of this Act at 150% of the tax due. Penalty levied : ₹ 76,81,344.00 Penalty paid : Rs.NIL Balance : ₹ 76,81,344.00 A demand notice form RR is issued. For Assessment Year 2011-12 On the basis of the above discussions, the objection filed is overruled and the proposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; is issued. Levy of penalty under Section 22(5) of the Act. As per Section 22(5), the penalty is leviable at 150% of the tax due on the escaped turnover. Penalty levied : ₹ 42,23,589.00 Penalty paid : Rs.NIL Balance : ₹ 42,23,589.00 A demand notice form RR is issued. 5. Material on record discloses that being aggrieved by the abovesaid orders for the assessment years, 2010-11, 2011-12 and 2012-13, respectively, petitioners have filed rectification petition under Section 84 of the TNVAT Act, praying to set aside the errors and mistakes alleged to have been committed in the assessment orders for the above said years. Considering the petitions, the Assistant Commissioner (CT), Cuddalore Town Assessment Circle, dismissed the petitions by orders dated 30.09.2016. As similar orders are passed on the rectification petitions, suffice to incorporate, one such order dated 30.09.2016. Order for the Assessment year 2010-11 TIN:33524383769/2010-11 Office of the Assistant Commissioner (CT) Cuddalore Town Assessment Circle Dated : 30-09-2014 To 1) Tvl. Coastal Oil and Gas Infrastructure Pvt Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2006, the appellant has chosen to file W.P.Nos.41443 to 41445 of 2016 challenging the original assessment orders dated 18.07.2016, issued by the Assistant Commissioner (CT), Cuddalore Town Circle, Cuddalore for the assessment years 2010-11 to 2012-13, contending inter alia that the assessing officer has failed to consider that payment have been made to ABIR Infrastructures Private Limited [in short 'ABIR'], sub contractor and as per Rule 8(5) of the TNVAT Rules 2007, [in short 'Rules'], the same has to be adjusted, which assessing officer has failed to consider and erred in passing the orders impugned in the writ petition. 8. Before the writ Court, contention has been made, that when the abovesaid issue involves a question of law, assessment orders, deserve to be interfered with. Refuting the above, revenue has contended that the abovesaid contention being a question of fact can always be addressed in the appeal, if any filed. After hearing the learned counsel for the parties and after considered the reasoning of the assessment officer, in one of the orders dated 18.07.2016, pertaining to the assessment year 2010-11, the writ Court extracted the same, as hereun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the reasoning and rival submissions and though, writ petitions have been filed beyond the statutory period provided therefor, for filing the appeal and taking note of the decisions of the Hon'ble Supreme Court in M.P.Steel Corporation Vs. Commissioner of Central Excise, reported in 2015 (5) Scale 505, J.Kumaradasan Nair V. IRIC Sohan, reported in (2009) 12 SCC 175 and Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement, reported in (2010) 4 SCC 772, dismissed the writ petitions by giving liberty to the appellant, to approach the concerned statutory authority. 10. Perusal of the order made in the writ petitions impugned before us indicates that though submission has been made by the learned counsel for the appellant, that they do not have the requisite funds to make a pre deposit of 25% of the disputed tax, taking note of the observations of the Hon'ble Supreme Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement, reported in (2010) 4 SCC 772, in particular, paragraph No.31 at page 781, writ Court declined to accept the said contention regarding pre deposit. 11. Though in the instant writ appeals filed against the order ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst which the application has been preferred and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, pass such order thereon as he thinks fit. (4) Notwithstanding 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 Deputy 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. 15. An order under rectification petition can be challenged only by way of a revision under Section 54 of the Act. Despite the same, exercising discretion in favour of the appellant, writ Court has granted liberty to file the appeal. Though, Mr.C.Baktha Siromani, learned counsel for the appellant contended that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Ltd. Vs. R.S.Pandey and Another (2005) 8 SCC 264, at para No.11 are as follows: Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the high Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. (iv) In United Bank of India Vs. Satyawati Tondon and Others {(2010) 8 SCC 110}, the Hon'ble Apex Court, at paragraph Nos.43 to 45, held as follows:- 43. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An alternative remedy is not a bar to the entertaining of writ petition filed 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 are under challenge. The Court has recognised some exceptions to the rule of alternative remedy. However, 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 or grievance still holds the field. (vi) The Hon'ble Apex Court, after considering a catena of cases, in Shauntlabai Derkar and Another Vs. Maroti Dewaji Wadaskar {(2014) 1 Supreme Court Cases 602}, at para Nos.15 to 18, held as follows:- 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e, where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal and set aside the judgment and order passed by the High Court in Chhabil Dass Agarwal Vs. Union of India {W.P.(c) No.44 of 2009, decided on 5/10/2010}. We grant liberty to the respondent, if he so desires, to file an appropriate petition/appeal against the orders of reassessment passed under Section 148 of the Act within four weeks' time from today. If the petition is filed before the appellate authority within the time granted by this Court, the appellate authority within the time granted by this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No.44 of 2009, in its judgment and order dated 5/10/2010. (vii) After considering a plethora of judgments, in Union of India and Others Vs.Major General Shri Kant Sharma and Another {(2015) 6 SCC 773}, at para36, the Apex Court held as follows:- The aforesaid decisions rendered by this Court can be summarised as follows:- (i). The power of judicial review vested in the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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