TMI Blog2019 (7) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... ule of alternate remedy, the principle that such a rule, though a rule of discretion and not a rule of compulsion, should be exercised with greater rigour in fiscal law statutes has been laid down. This Court is convinced that this is a fit case of relegation to alternate remedy of an appeal to the jurisdictional Deputy Commissioner under Section 51 of TNVAT Act. - W.P.Nos.3219, 5042, 5055 & 5066 of 2019 And W.M.P.Nos.5752, 5753, 5773, 5774, 5776, 5777, 3466 & 3468 of 2019 - - - Dated:- 2-7-2019 - Mr. Justice M. Sundar For the Petitioner : Mr.M.MD.Ibrahim Ali (in all W.Ps) For the Respondents : Ms.G.Dhanamadhri Government Advocate (in all W.Ps) COMMON ORDER This common order will govern these four writ petitions. In other words, this common order will dispose of these four writ petitions. 2. Mr.M.MD.Ibrahim Ali, learned counsel on record for writ petitioner in all the four writ petitions is before this Court. Ms.G.Dhanamadhri, learned Government Advocate on behalf of all the respondents in all the four writ petitions is before this Court. 3. With consent of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, the Assessment order was originally passed on 30.06.2014, thereafter notice was issued by the 4th respondent being notice dated 13.04.2017 making certain proposals and calling for objections. Writ petitioner sent a representation dated 09.06.2017. Thereafter, a pre-assessment notice dated 09.01.2018 was sent to the writ petitioner, calling upon the writ petitioner to make objections and specifically, relevant supporting documents were asked for. Admittedly, writ petitioner did not respond to this notice and therefore, the impugned Assessment order came to be passed. Consequent upon the impugned Assessment order, an order of attachment of Bank Account has also been made and the attachment of Bank account is dated 13.12.2018. 13. With regard to the other three writ petitions, pre-assessment notice was issued, calling for objections and supporting documents. Admittedly, writ petitioner did not respond at all and the same culminated in the impugned Assessment orders. Post impugned Assessment orders, consequential orders of attachment have also been passed. 14. Learned counsel for writ petitioner, advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to in [clause(c)] of the first proviso to sub-section (1) of section 13 shall be in [ electronic Form S and it shall be generated by the assessing authority after satisfying that the dealer has paid the tax or the dealer has no liability to pay tax.] (3) The certificate of deduction of tax referred to in sub-section (3) of section 13 shall be in [ electronic Form T and it shall be based on the statement filed in electronic Form R ]. (4) The notice in writing, indicating the amount payable under the Act, referred to in sub-section (5) of section 45 shall be in Form U .' 19. Learned counsel for writ petitioner submits that he will be able to show that the TDS amounts have been duly paid and he has the documents in his hand / possession. However, the writ petitioner did not respond to the aforesaid pre-assessment notices with regard to one of the four writ petitions in W.P.No.3219 of 2019. Though cryptic two sentence objections was sent to the original notice, there was no response to the pre-assessment notice. 20. Learned counsel for writ petitioner, brought to the notice of this Court a judgment of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities of Hon'ble Supreme Court is of significance. 25. From the long line of authorities of Hon'ble Supreme Court, it becomes clear that the rule of alternate remedy or the rule pertaining to exercise of writ jurisdiction under Article 226 notwithstanding alternate remedy, is not an absolute rule, but is a rule of discretion. Though it is not a rule of compulsion and it is a rule of discretion, this Court deems it appropriate to refer to two judgments of Hon'ble Supreme Court viz., Satyawati Tandon Case [ United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] and K.C.Mathew case [Authorized Officer, State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3 SCC 85]. To be noted, Satyawati Tondon principle was reiterated in latter of the two i.e., K.C.Mathew. In Satyawati Tondon case and K.C.Mathew regarding rule of alternate remedy, the principle that such a rule, though a rule of discretion and not a rule of compulsion, should be exercised with greater rigour in fiscal law statutes has been laid down. More importantly, in Satyawati Tondon case, Hon'ble Supreme Court held that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' 26. As rightly pointed out by the learned counsel for Revenue counsel, alternate remedy issue and the long line of authorities of Hon'ble Supreme Court in this regard, had not been projected by parties concerned in G.V.Cotton Mills case. In any event, G.V.Cotton Mills case is clearly distinguishable on facts as that was not a case of no explanation at all albeit with minor variations in W.P.No.3219 of 2019. In any event, that minor variation also pales into insignificance as there was no response to the pre-assessment notice. There is one more reason as to why this Court is persuaded to relegate the writ petitioner to alternate remedy. The reason is that the submissions made brings to light that the matter turns on facts. Even if the documents are now produced by the writ petitioner,(writ petitioner has not chosen to respond to the pre-assessment order) this Court is of the considered view that it would not serve the ends of justice to permit one more round of litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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