TMI Blog2021 (7) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... erification of records are required and the Appellate Authority is the final fact finding Authority regarding the adjudication of disputes. Therefore, preferring an appeal is preferable for the purpose of resolving the issues in a full-fledged manner. The practice of filing the Writ Petitions are in ascending mode without exhausting the appeal remedy mostly with an idea to avoid payment of pre-deposit for filing an appeal. Such a practice can never be encouraged. In all circumstances, the parties are bound to exhaust the appeal remedy in the manner prescribed. This being the principles settled by the Courts, this Court is of an opinion that such disputed questions raised in the Writ Petition cannot be decided by this Court based on the affidavit or based on the orders passed by this Court, holding that the option letters need not be submitted by the assessee. All these issues are to be decided on merits and with reference to the documents and evidences to be produced. The petitioner has to exhaust the Appellate remedy as contemplated under the provisions of the Act. Accordingly, the petitioner is at liberty to prefer an appeal in a prescribed format by applying the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken and the impugned orders were passed and thus, the impugned orders are liable to be set aside. 6. The learned Government Counsel for the respondents disputed the said contentions by stating that the assessment orders were passed by following the procedures as contemplated under the provisions of the Act. The impugned assessment orders are passed not only based on report of the Enforcement Directorate Officials, but, on the basis that there are certain discrepancies in the turn over and other aspects. Thus, it was the considered order passed by following the procedures and thus, the Writ Petitions need not be entertained. If at all, the petitioner has any grievance, he has to prefer an appeal before the Appellate Authority under the Provisions of the Act. 7. Considering the arguments, this Court is of an opinion that the impugned order stipulates that regarding the difference in the turnover, the dealers have file Form WW and Profit and Trading and loss account for the Month of December 2014 only. At the time of filing Form WW, they have reported that the total sales turnover is ₹ 56,08,055/- in the Trading Account. At that time of inspection, they have not reconc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reconciliation being made and since the dealer had not proved with documentary evidences that they had filed option to pay tax under the compounding scheme and that the turnover as pointed out by the Enforcement Wing Officials were already included in the returns and tax due paid thereon, the Assessing Authorities having no other alternative, has passed orders, confirming the revision proposed. 11. The above facts would reveal that the respondents had provided opportunity to the Writ Petitioner to submit all his books of accounts etc., and the opportunities provided were not availed by the petitioner. Contrarily, they have sent representation, which was also considered by the Authorities and the decision is taken and orders passed . 12. This Court is of the considered opinion that persons, who have not availed the opportunities while adjudication under a Statute and thereafter approaching the Court by filing Writ Petition under Article 226 of the Constitution of India cannot be encouraged. All such persons, if at all aggrieved from and out of any such orders passed, they are bound to prefer an appeal provided under the Act. Exhausting the Appellate remedy is of paramount impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. Such a practice can never be encouraged. In all circumstances, the parties are bound to exhaust the appeal remedy in the manner prescribed. This being the principles settled by the Courts, this Court is of an opinion that such disputed questions raised in the Writ Petition cannot be decided by this Court based on the affidavit or based on the orders passed by this Court, holding that the option letters need not be submitted by the assessee. All these issues are to be decided on merits and with reference to the documents and evidences to be produced. 17. This Court has elaborately considered the importance of exhausting the appeal remedy in W.P.No.3144 of 2016 dated 15.04.2021 and the relevant paragraphs are extracted hereunder: ''7. In order to avoid the Pre-Deposit, which is contemplated under the Statute, the practice of filing writ petitions is prevailing in the High Court and the High Court cannot encourage such practice and the appellate remedy contemplated under the Act is to be exhausted in all circumstances and only under extraordinary circumstances, in order to mitigate injustice, the High Court can intervene and not otherwise. Such power of dispensing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, connected miscellaneous petition is closed. .... .... 11.This Court is of the considered opinion that all such grounds raised on merits are to be adjudicated with reference to the documents and evidences to be produced and the scope of the writ petition under Article 226 of the Constitution of India cannot be expanded so as to exercise the powers of the appellate authority in the matter of examination or scrutiny of original documents and evidences produced by the respective parties. The very purpose of the statutory appeal is to scrutinize the orders passed by the original authorities, and therefore, the legislative intention in this regard is to be scrupulously followed in the mater of adjudication of merits with reference to the documents and evidences. 12.In common parlance, Statutes contain appeal provisions. In some of the Statutes, there are two-tier appeal provisions in order to ensure that the facts, grounds, evidences are appreciated and the grievances are redressed in the manner known to law. Such appeal provisions are provided with the legislative intention to provide remedy to the aggrieved persons. The High Court, in normal circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of regular appeal and the Hon'ble Supreme Court of India, while adjudicating the final orders passed by the Appellate Tribunal, formed an opinion that the issuance of show cause notice itself was by an improper authority. Thus, by citing the said finding, the appellate remedy otherwise provided under the Statute cannot be dispensed with, and in the event of accepting the said contention, in all such cases, every litigant will approach the High Court by way of writ petition bypassing the appellate remedy, which is not desirable and cannot be accepted. As observed earlier, Institutional respect is of paramount importance. Even the point of jurisdiction, limitation, error apparent on the face of the record, are on merits and all are to be adjudicated before the appellate authority and the appellate authority, more specifically, the Appellate Tribunal or the Commissioner (Appeals), as the case may be, is empowered to adjudicate all such legal grounds raised by the respective parties and make a finding on merits. Thus, usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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