TMI Blog2021 (9) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... ne have been issued. This finding is not supported by any document or any report, which was called for and obtained by the Assessing Officer. In such circumstances, it has to be held that the Assessing Officer did not enquire into the matter, particularly, with regard to the aspects pointed out by the appellant that the selling dealer's registration was valid and sale bills have been issued and payments have also been effected by the appellant - If such is the factual position, we need to take note of the legal position as to whether, the appellant is required to prove that the selling dealer had paid taxes. The Hon'ble Division Bench pointed out that, admittedly, the Registration Certificates of the selling dealers were in force and their services were not canceled and there is no explanation on the side of the Revenue for not examining the selling dealers. Further, dealing with the issue that the bills were bogus, the Division Bench pointed out that, in the bills, the Registration Number and names of the sellers were given, but the Department failed to identify the sellers and make them available for cross-examination. In the case on hand also, the Assessing Officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by filing the writ petition, which was filed during the year 2006 and an order of interim stay was granted. The respondent/Department, represented by the State Tax Officer, Palladam, had filed their counter affidavit sometime in February, 2019, reiterating the stand taken in the Assessment Order, stating that the Cotton Yarn purchase of the petitioner had not suffered Tax already, as the seller was non-existent and had not paid the legitimate tax dues to the Government on the sale of Cotton Yarn, and therefore, the appellant is deemed to be the first purchaser of the Cotton Yarn and liable to pay Tax to the Department. 4.The learned Writ Court, by the impugned order, dismissed the Writ Petition, taking note of the memo filed by the respondent, stating that the Assessment Order was passed on 02.01.2006 and served on the appellant on 12.01.2006 and if the appellant had filed an appeal before the first Appellate Authority in terms of Section 31(1) of the Act, they should have filed it by 10.02.2006 or atleast by 12.03.2006 and the writ petition was filed only on 06.04.2006. It appears that the respondent had placed reliance on the decision of the Hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court from 2006 and interim stay was operating against the respondent, could have been rejected on the ground mentioned by the learned Writ Court in the impugned order. Parallelly, the other issue would be whether, there is an absolute bar for the Writ Court to entertain a challenge to an Assessment Order and is there any such specific observation in the decision in Glaxo Smith Kline Consumer Health Care Limited . 11.Identical issue came up for consideration before this Court in the case of Mahindra Mahindra Ltd. v. The Joint Commissioner (CT) Appeals, Chennai and another [W.A.No.493 of 2021 dated 18.02.2021] . In the said case also, the writ petition was dismissed by the learned Single Bench by placing reliance on Glaxo Smith Kline Consumer Health Care Limited and the Division Bench, to which one of us (TSSJ) was a party, had interfered with the said order and entertained the writ petition and decided the matter on merits. The following paragraphs of the said judgment would be of relevance. 4. The learned Single Judge placed reliance on the decision of the Hon'ble Supreme Court in the case of ACCT, LTU, Kakinada Vs. Glaxo Smith Kline Consumer Health c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. ...... 19........ Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non - compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would be considered and disposed of in the the light of and in accordance with the provisions of Section 11B of the Central Excise Tax Act and for such a reason, the power under Article 226 of The Constitution of India has to be exercised to effectuate rule of law and not for abrogating it. 9. In the light of the above, we have no hesitation to hold that the observation of the learned Single Judge to the effect that there is absolute bar for entertaining a writ petition does not reflect the correct legal position. Hence, we are inclined to interfere with the observation made in the impugned order. 12.The above decision would be equally applicable to the case on hand, as the applicant's case before the learned Writ Court was that the Assessing Officer lacks jurisdiction to tax the transactions in the hands of the assessee, as the appellant cannot be made liable for non-payment of the tax by the selling dealer and it is not necessary for the appellant to prove that the first sale has suffered tax at the hands of the selling dealer. Further, the appellant had challenged the Assessment Order on the ground of unfairness in the action of the statutory authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arose for consideration, wherein, the Revenue took a stand that the bills issued by the alleged sellers were bogus and they were non- existent and therefore, the purchasing dealer had to pay tax. The Revenue stated that the assessee therein have not proved the movement of goods, but the assessee had produced certain documents before the Tribunal to establish that the goods moved pursuant to the sale transaction. The Hon'ble Division Bench pointed out that, admittedly, the Registration Certificates of the selling dealers were in force and their services were not canceled and there is no explanation on the side of the Revenue for not examining the selling dealers. Further, dealing with the issue that the bills were bogus, the Division Bench pointed out that, in the bills, the Registration Number and names of the sellers were given, but the Department failed to identify the sellers and make them available for cross-examination. In the case on hand also, the Assessing Officer took no steps to enquire into the matter, pursuant to the objections filed by the appellant. 15.Thus, for all the above reasons, we are of the clear view that the revision of assessment made on the appe ..... 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