TMI Blog2018 (6) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. Some of such exceptions being total lack of jurisdiction, violation of principles of natural justice, an order devoid of reasons, an order which suffers from perversity and unreasonableness, an order passed by an incompetent authority etc. The reason assigned by the learned counsel for the petitioner to bye-pass the appellate remedy available under the Act is not convincing. Unless and until the petitioner is able to factually establish that they had, infact carried on business in a particular premises from a particular date and shifted from the premises to an another premises, the question of applying the legal principles in various decisions relied on by the petitioner, does not arise. The burden of proof lies on the petitioner to establish that they had been functioning at a particular location, which is the registered place and shifted to a different venue from 05.11.2014 and thereafter, shifted to another venue on 20.07.2015. This Court cannot dorn the role of an Assessing Officer or the Appellate Authority and peruse the statement of accounts, details of sales turnover and to examine the conduct of the assessee. This Court is not inclined to entertain the Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, after the inspection by the Inspecting Officers; (v) the petitioner did not maintain purchase cum stock account for the goods held at the said place as provided under Rule 6(2)(b) of the TNVAT Rules, 2007, either at the principal place of business or at the place where the goods were stored; (vi) the petitioners have not maintained and produced input tax adjustment account for proof of tax reference of stock of goods as provided under Rule 6(9) of the said Rules. Based on the above allegations, the respondent provisionally concluded that the goods stored are unaccounted and not tax suffered as claimed by the petitioner and the petitioner has suppressed the purchases and sales and accordingly, estimation was made in the notice. The petitioner was directed to show cause as to why the estimation, as proposed in the notice, should not be confirmed. The petitioner was also directed to show cause as to why penalty should not be imposed under Section 27(3)(c) of the TNVAT Act, as the defects would not have come to light but for the surprise inspection. The partner of the petitioner firm who is the deponent to the affidavit filed in support of the Writ Petition, would state that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment, since the statement forms part of the record of the Inspecting Officer. Further, the learned counsel referred to the representation given by the petitioner to the Inspecting Officers, dated 03.09.2015. These letters and correspondence have been referred to support the contention of the petitioner that the goods were not stored in an unregistered place of business and cannot be treated to be goods which are not accounted for or not tax suffered goods. 5. Ms.G.Dhana Madhri, learned Government Advocate for the respondent raised a preliminary objection regarding the maintainability of the Writ Petitions contending that complicated factual issues are involved in the instant case and the petitioner should not be permitted to byepass the appeal remedy available under the Act, more so when the petitioner has not submitted any objection to the revision notices dated 13.10.2017. It is submitted that for the assessment years 2012-13 2013-14, the petitioners have effected purchases from M/s.Transtonnelstroy Afcons Joint Venture, ADS Trading Company, M/s.Vijay Nirmal company Private Limited and claimed input tax credit, but have not shown the respective purchase turnover in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was placed on the decisions of the Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai Ors., [AIR 1999 SC 22]; Tin Plate Co of India Ltd., vs. State of Bihar Ors., [AIR 1999 SC 74]; Assistant Collector of Central Excise Chandan Nagar, West Bengal vs. Dunlop India Ltd Ors., [AIR 1985 SC 330] and Titaghur Paper Mills Co.Ltd., and Anr., vs. State of Orissa [(1983) 2 SCC 433]. 6. Heard the learned counsels appearing for the parties and perused the materials placed on record. 7. The first issue to be considered is whether the Writ Petitions have to be entertained, permitting the petitioner to bye-pass the statutory remedy available under the Act. 8. The settled legal position is that under normal circumstances, a party should not be permitted to bye-pass the statutory remedy available under the Act. This is more so when a case arises out of a taxation statute. No doubt, there are exceptions to this Rule and the Hon'ble Supreme Court has carved out these exceptions and under what circumstances a party can be permitted to bye-pass the statutory remedy available under an enactment and these exceptions cannot be stated to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter as to be the date on which the godown started functioning has been mentioned by the learned Government Advocate to be, to bring it within the ambit of Rule 5(5)(a) of the Rules, which prescribes a 30 days' time limit. The learned Government Advocate further submitted that the letter dated 31.07.2015, is a self-serving document and an application made for registration of godown after inspection would clearly show that it is an afterthought. Prima facie, the Court is of the view that there is no clear record to show as to on which date the new godowns were opened, and when they commenced operation etc. However, the Court does not propose to dwell further into the matter, as the issues are disputed questions of fact, which obviously cannot be adjudicated in a Writ Petition. 10. The reason assigned by the learned counsel for the petitioner to bye-pass the appellate remedy available under the Act is not convincing. Unless and until the petitioner is able to factually establish that they had, infact carried on business in a particular premises from a particular date and shifted from the premises to an another premises, the question of applying the legal principles in vario ..... X X X X Extracts X X X X X X X X Extracts X X X X
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