TMI Blog2019 (9) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer to grant personal hearing in a given case depending on the factual matrix in that case. It is clear that though the writ petitioner was given an opportunity of personal hearing not once but on two occasions, the writ petitioner did not go over to the office of the respondent. On the contrary, writ petitioner now avers in the affidavits filed in support of the writ petitions that the writ petitioner was awaiting a notice for appearance on a particular date and time for filing evidence along with under cover of reply letter dated 09.01.2019. In this regard also, what is of utmost significance in the considered view and opinion of this Court is, the clincher is that the writ petitioner has not articulated in the reply dated 09.01.2019 (second revisional notice) that they are expecting the respondent Assessing Officer to specify a date and time for personal hearing. In the instant case, this Court notices that there is no explanation, as to why the writ petitioner did not mention in the reply to the second revisional notice (at least) for a specific date and time for personal hearing. Even if that not be so, it has not even been mentioned in both replies i.e., repli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dealer under TNVAT Act, that writ petitioner was filing monthly returns under Section 21 of TNVAT Act, that there was deemed assessment under Section 22 of TNVAT Act, that the business premises of the writ petitioner was inspected by the Enforcement Wing officials of Commercial Tax Department and that during such inspection Enforcement Wing officials noticed, what according to them, are defects. This is the genesis of these instant matters on hand. 8. Continuing with short facts shorn of micro details/elaboration, suffice to say that the Enforcement Wing made proposals, that based on the proposals given by the Enforcement Wing officials revisional notices dated 27.01.2017 was issued, that the writ petitioner dealer filed objections dated 02.03.2017, that post objections, that the respondent issued a notice signed on 29.12.2018 (admittedly received by writ petitioner on 02.01.2019) calling for supporting evidence pertaining to the correctness of the transactions owing to the objections, that the writ petitioner dealer sent a further communication dated 09.01.2019 with enclosures and that thereafter, revised assessment orders which have been called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a view to support his claim of input tax credit or refund, the assessing authority shall, at any time, within a period of [six years from the date of assessment], reverse input tax credit availed and determine the tax due after making such a enquiry, as it may consider necessary: Provided that no order shall be passed under sub-sections (1) and (2) without giving the dealer a reasonable opportunity to show cause against such order. (underlining made by this Court to supply emphasis and highlight) 12. A perusal of the aforesaid proviso makes it clear that a reasonable opportunity to show cause against the impugned orders would suffice. Unlike some other provisos in TNVAT Act i.e., proviso to Section 22(4), this proviso does not say that reasonable opportunity of being heard should be granted. To be noted, proviso to Section 22(4) says that it is statutorily imperative to give a reasonable opportunity of being heard. 13. This Court has already held that the two provisos under Section 22 (4) and proviso to Section 27(1) (2) of TNVAT Act, are different as one makes a reasonable opportunity of being heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning objections, another revisional notice (also referred to supra) signed on 29.12.2018 was issued by the respondent and this was admittedly received by the writ petitioner on 02.01.2019. For this second revisional notice also again an opportunity of personal hearing was afforded to the writ petitioner and the relevant portion of the second revisional notice reads as follows: They are also given an opportunity of personal hearing within the prescribed time of 15 days or any working day before the undersigned along with evidences. To this second revisional notice signed on 29.12.2018, writ petitioner responded by way of a detailed reply dated 09.01.2019 and as mentioned to supra, under cover of this detailed reply dated 09.01.2019, writ petitioner has sent as many as four enclosures . To be noted, in the second revisional notice, the respondent Assessing Officer has called notices to appear. Be that as it may, separate objections have been raised by the writ petitioner dealer. 20. What is of utmost significance is, even in this reply to the second revisional notice i.e., reply dated 01.09.2019, where supporting documents were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed by the writ petitioner though an opportunity was given not once but on two occasions. More importantly, it is not writ petitioners case that they had responded by requesting the respondent authority to specify a date and time. With regard to personal hearing, learned counsel for writ petitioner pressed into service two orders of this Court, one being an order dated 16.08.2017 made in W.P.Nos.21193 to 21195 of 2017 and the other being an order dated 21.03.2017 made in Albis Constructions Private Limited vs. Assistant Commissioner, 2017 (102) VST 131 (Mad.). In the considered view of this Court, a careful reading of these two orders reveal that they are clearly distinguishable on facts. They are not cases where opportunity of personal hearing was granted more than once. They are cases where personal hearing was afforded along with revisional notice and without waiting for objections, the authorities went on to pass revised assessment orders. 23. In the instant case, this Court notices that there is no explanation, as to why the writ petitioner did not mention in the reply to the second revisional notice (at least) for a specific date and tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same reads as follows: '3......Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. This practice needs to be strongly discouraged.' (underlining made by this Court to supply emphasis and highlight) 26. Post Dunlop India case, in Satyawati Tandon Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial 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.' (Underlining made by Court to supply emphasis and highlight) 28. From a long line of authorities, more particularly, the three celebrated judgments, which have been set out supra, it comes out clearly that the rule of alternate remedy is not a rule of compulsion, but it is a rule of discretion . Though it is not an absolute rule, the same has to be applied with utmost rigour when it comes to matters relating to tax, cess etc., In the instant case, the writ petitioner not having availed personal hearing and the contentions turning on facts, this Court is of the view that it is a fit case to relegate the writ petitioner to alternate remedy of statutory appeal. 29. This Court also makes it clear that it is well open to the Appellate Authority to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same on its own merits and in accordance with law. 33. Obviously, it is made clear that if the writ petitioner choses to avail alternate remedy, all other conditions adumbrated in Section 51 of TNVAT Act, including conditions of predeposit would apply. 34. Owing to all that have been set out supra, instant writ petitions are dismissed albeit without expressing any opinion or view on the merits of the matter so as to ensure that an effective appeal remedy is available to the writ petitioner. In other words all questions including questions raised in the instant writ petitions irrespective of whether the same have been dealt with in this order or not are left open. It is open to the Appellate Authority to afford an opportunity of personal hearing to the writ petitioner. Appellate Authority can still go into facts and examine all objections of the writ petitioner. 35. All seven writ petitions stand dismissed, albeit preserving the rights of the writ petitioner to file statutory appeals in the manner articulated supra in these orders. Consequently, connected miscellaneous petitions are also dismissed. No costs. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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