TMI Blog2021 (6) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... Court will not only be over-burdened, but usurping the powers of the appellate authority, which is certainly not desirable. Jurisdictional error should not result in exoneration of liability - Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. The higher authorities of the Department are expected to be watchful and review the orders passed by the subordinate authorities and in the event of any negligence, dereliction of duty, collusion or corrupt activities, such officials are liable to be prosecuted apart from initiation of departmental disciplinary proceedings. The procedures to be followed in the department for assessment are well settled. Thus, the authorities competent are not expected to commit such jurisdictional errors in a routine manner. In these circumstances, review of such orders by the higher authorities are imminent to form an opinion that there is willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Schedule. The proviso states that the registered dealer, who claims input tax credit, shall establish that the tax due on such purchases has been paid by him in the manner prescribed. Sub-section (2) states that 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 stated in the said provision. However, the respondent has erroneously implemented the amended Section 19 with reference to the assessment years falling prior to the amendment. Thus, the order of assessment was passed without any application of mind and thus, there is a jurisdictional error in application. 5.It is contended on behalf of the petitioner that when the impugned order is passed with jurisdictional error and based on erroneous application of law, then a writ petition is to be entertained without exhausting the statutory appellate remedy provided under the Act itself. It is not in dispute that there is an appeal remedy made available in the statute. However, it is contended that exhaustion of an alternate remedy is not mandatory in the present case, as the Assessing Officer has not applied his mind and there is lack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment; (b) within a period of sixty days, in the case of any other person, from the date on which the order was served, appeal against such order to the Appellate Tribunal. Procedures are also contemplated. 9.Section 59 provides appeal to High Court. Section 60 contemplates revision by High Court. These all are the framework of the statutes in order to facilitate the aggrieved persons to redress their grievances and therefore, the importance of appellate remedy cannot be dealt with in a casual manner. 10.Exhausting the appeal remedy is the rule. Dispensing with the appellate remedy is an exception. Power of discretion is to be exercised discretely only if there is an imminent urgency or damage, if any, caused or there is any threat, which cannot be compensated then alone, the extraordinary power may be invoked for the purpose of granting relief by dispensing with the appellate remedy. However, the transactions in account books and the nature of trade, business etc., and the manner in which such transactions are carried on by the assessees, its intricacies and other practical aspects are to be considered by the competent appellate authorities with reference to the original reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner raised a point that the impugned assessment order is passed by the original authority by applying the post amended provision of the TNVAT Act, which is total non application of mind. Thus, a writ proceeding is entertainable. Even in such case of erroneous application of the provisions of the TNVAT Act, the appellate authority is empowered to correct the same and they are empowered to consider all the legal grounds raised by the parties by affording opportunity. The appeal provision itself contemplates the powers of the appellate authority and they possess enough powers to deal with all issues including the jurisdictional issues and other legal grounds raised by the respective parties. 14.This Court elaborately discussed the importance of exhausting the appellate remedy in the case of M/s.Hyundai Motor India Limited v. The Deputy Commissioner of Income Tax, Chennai and another [W.P.No.22508 of 2017 dated 16.07.2018], from which, the following paragraphs are extracted : 19. Unnecessary or routine invasion into the statutory powers of the competent authorities under a statute should be restrained by the Constitutional Courts. Frequent or unnecessary invasio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. [MANU/SC/0445/1973 : (1973) 4 SCC 225]. That separation of powers between the legislature, the executive and the judiciary is the basic structure of the Constitution is expressly stated by Sikri, C.J. 3. P. Kannadasan and Ors. v. State of T.N. and Ors. [MANU/SC/0650/1996 : (1996) 5 SCC 670 ] the Supreme Court noted that the Constitution of India recognised the doctrine of separation of powers between the three organs of the State, namely, the legislature, the executive and the judiciary. The Court said: It must be remembered that our Constitution recognises and incorporates the doctrine of separation of powers between the three organs of the State, viz., the Legislature, the Executive and the Judiciary. Even though the Constitution has adopted the parliamentary form of government where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid. 4. State of Tamil Nadu and Ors. vs. State of Kerala and Ors. (07.05.2014 - SC) : MANU/SC/0425/2014 121. On deep reflection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to remedy the defects pointed out by a court of law or on coming to know of it aligned. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. (vi) If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law. 20. This Court is of a strong opinion that institutional respects are to be maintained by the constitutional Courts. Whenever there is a provision for an appeal under the statute, without exhausting the remedies available under the statute, no writ petition can be entertained in a routine manner. Only on exceptional circumstances, the remedy of appeal can be waived, if there is a gross injustice or if there is a violation of fundamental rights ensu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax and Ors. v. ChhabilDass Agarwal , MANU/SC/0802/2013 : 2014 (1) SCC 603, as follows: Para 15. 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 judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in ThansinghNathmal case, Titaghur Paper Mills case and other similar judgments that 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 still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 4. Authorized Officer, State Bank of Travancore and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative 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. 6 . K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors., AIR (1954) SC 207; Sangram Singh v. Election Tribunal, Kotah and Ors., AIR (1955) SC 425; Union of India v. T.R. Varma, AIR (1957) SC 882; State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR (1966) SC 1089 , Constitution Benches of the Supreme Court held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority, which is certainly not desirable. 16.Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated. 17.The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The points raised in this regard are statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be entertained. In the absence of exhausting such remedies, High Court is losing the benefit of deciding the matter on merits, as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide unnecessary opportunities to the assessee to escape from the liability merely on the ground of jurisdictional error, which is rectifiable. 19.The learned counsel appearing on behalf of the petitioner fairly made a submission that he will avail the opportunity to defend his case before the competent authority passing all the final assessment order and therefore, the authorities competent shall proceed with the final assessment by affording opportunity to the assessee and by following the procedures contemplated under the statute. If any final assessment order has been passed thereafter, if the petitioner is aggrieved, he is at liberty to prefer appeal under Section 51 of TNVAT Act. 20.For all these reasons, the respondent is directed to proceed with the final assessment and pass assessment order on merits and in accordance with law and by affording opportunity to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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