TMI Blog2021 (7) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart, in a writ petition, if such orders are passed with jurisdictional errors and quashed without any remand, then an injustice would be caused to the very spirit of the statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent - Liability and jurisdictional errors are distinct factors, and therefore, Courts are expected to provide an opportunity to the Department to decide the liability on merits and in accordance with law with reference to the provisions of the Act and Rules and guidelines issued by the Department. This Court has no hesitation in arriving a conclusion that the petitioners are bound to exhaust the statutory appellate remedy as contemplated under the provisions of the TNVAT Act. Thus, the petitioners are at liberty to approach the appellate authority by filing appeal/revision and by following the procedures contemplated - Petition disposed off. - W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd thus, there is a jurisdictional error in application. 5.It is contended on behalf of the petitioners that when the impugned orders are 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 of jurisdiction. In view of the fact that the impugned orders are passed without any application of mind, the petitioners have chosen to file these writ petitions without exhausting the appellate remedy and therefore, the appellate remedy is to be dispensed with and the matter is to be decided on merits. 6.The learned counsel for the petitioners relied on certain judgments in support of their contentions regarding the appellate remedy by stating that High Courts and the Supreme Court have dispensed with the appellate remedy in many cases and therefore, the benefits of the judgments are to be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 records. The appellate authority is the final fact finding authority. Thus, the findings of the appellate authority as well as the original authority are of paramount importance for the purpose of dealing with the issues by the High Court for exercising the power of judicial review under Article 226 of the Constitution of India. In other words, findings of the original authority as well as the appellate authority would be of greater assistance to the High Court for effective disposal of the writ petitions and for providing complete justice to the parties. In the event of dispensing with the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of powers under the Indian Constitution has been narrated and settled in umpteen number of judgments. Separation of powers demarcated in the Constitution of India is also to be considered, while exercising the powers of judicial review in the matter of dispensing with the appeal remedy provided for an aggrieved person under a statute. If the High Courts started interfering with such Appellate powers without any valid and substantiated reasons, then the very purpose and object of the statute and provision of appeal under the statute became an empty formality and the High Courts also should see that the provisions of appeal contemplated under the statutes are implemented in its real spirit and in accordance with the procedures contemplated under the rules constituted thereon. While entertaining a writ petition as narrated by the Apex Court, the provision of efficacious alternative remedy under the statute also to be considered. If the writ petitions are entertained in a routine manner, by not allowing the competent Appellate authority to exercise their powers under the provisions of the statute, then this Court is of an opinion that the power of judicial review has not exercised i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers between legislature, executive and judiciary may, in brief, be summarized thus: (i) Even without express provision of the separation of powers,the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs- legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of power, the separation of power between legislature, executive and judiciary is not different from the constitutions of the countries which contain express provision for separation of powers. (ii) Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority is bound to approach the Appellate Authority. The Constitutional Courts cannot make an appeal provision as an empty formality. Every Appellate Authority created under the statute to be trusted in normal circumstances unless there is a specific allegation, which is substantiated in a writ proceedings. Thus, the institutional functions and exhausting the appeal remedies by the aggrieved persons, are to be enforced in all circumstances and writ proceedings can be entertained only on exceptional circumstances. Rule is to prefer an appeal and entertaining a writ is only an exception. This being the legal principles to be followed, this Court cannot entertain the writ petitions in a routine manner by waiving the remedy of appeal provided under the statute. 21. Now, let us look into the legal principles settled by the Apex Court for exhausting the efficacious alternative remedy provided under the statute. 22. When an effective alternative remedy is available, a writ petition cannot be maintained 1. In City and Industrial Development Corporation v. DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168, this Court had observed that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. The High Court ought not to have entertained the writ petition in view of the adequate alternate statutory remedies available to the Respondent. The interim order was passed on the very first date, without an opportunity to the Appellant to file a reply. Reliance was placed on United Bank of India vs. Satyawati Tandon and others, 2010 (8) SCC 110, and General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others, 2013 (10) SCC 83. The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere with the same. The Supreme Court agreed to the arguments and held the same also noted that the writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of U.P. and Ors. v. M/s. Indian Hume Pipe Co. Ltd., [1977] 2 SCC 724. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 14.As far as the judgment of the Hon'ble Supreme Court of India in the case of M/s.Canon India Private Limited v. Commissioner of Customs [Civil Appeal No.1827 of 2018 , dated 09.03.2021] is concerned, as rightly pointed out by the learned Government Advocate appearing on behalf of the respondents, the matter went to the Hon'ble Apex Court by way of regular appeal and the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e caused to the very spirit of the statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent. On some occasions, jurisdictional errors are committed wantonly or in collusion with the assessees, knowingly that there is a possibility of escaping from the clutches of law. Thus, 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, then 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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