TMI Blog2021 (10) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... an, Government Advocate ORDER Captioned writ petition and writ miscellaneous petition No.21761 of 2021 therein are in the Admission Board. 2. An 'order dated 23.07.2021 bearing reference No.TIN/33821003639/2014-15' [hereinafter 'impugned order' for the sake of convenience and clarity] made by the sole respondent under 'the Tamil Nadu Value Added Tax Act, 2006, (Tamil Nadu Act No.32 of 2006)' [hereinafter 'TNVAT' for the sake of convenience and clarity] has been called in question in the captioned writ petition. 3. To be noted, this is the second round of litigation, as when the revisional order/re-assessment was made earlier, the same was assailed by the writ petitioner before this Court vide WP.No.25293 of 2015 which came to be disposed of on 16.06.2017 by another Hon'ble learned single Judge directing the respondent to pass final assessment order. It is not necessary to dilate further on the same as it is not imperative for appreciating this Order. Suffice to say that pursuant to the order made in the earlier writ petition, the impugned order has been made by the sole respondent. 4. Notwithstanding very many averment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show cause has been given to the writ petitioner. In the light of the aforementioned 28.06.2017 notice, writ petitioner's response and the stated position of writ petitioner that post response of writ petitioner dated 25.07.2017, writ petitioner went before Assessing Authority and produced books of accounts, the answer is in the affirmative. It is the case of writ petitioner that the Assessing Authority has made an error in appreciating books of accounts and has proceeded on a wrong basis and that is clearly a ground of appeal. 8. This takes us to alternate remedy. In the case on hand, there is no disputation or disagreement that alternate remedy is available to writ petitioner vide Section 51 of TNVAT Act which reads as follows: ' 51 .Appeal to [Appellate Deputy Commissioner].-- (1) Any person objecting to an order passed by the appropriate authority under section 22, section 24, section 26, sub-sections (1), (2), (3) and (4) of section 27, section 28, section 29, section 34 or sub-section (2) of section 40 other than an order passed by an [Deputy] Commissioner (Assessment) may, within a period of thirty days from the date on which the order was served on him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be prescribed: Provided further that the directions given under the first proviso shall stand vacated, if no order is passed under subsection (3) within a period of one hundred and eighty days of the issue of order under the said proviso.' 9. On alternate remedy, in a long line of authorities Hon'ble Supreme Court i.e., from Dunlop India case law [Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd., and others reported in (1985) 1 SCC 260], Satyawati Tandon case law [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] and K.C.Mathew case law [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. reported in (2018) 3 SCC 85] has held that alternate remedy no doubt is not an absolute rule. In other words, alternate remedy rule is discretionary and it is a self imposed restraint qua writ jurisdiction. What is of significance is, vide these case laws, it has been repeatedly held that alternate remedy rule has to be applied with utmost rigour when it comes to fiscal Statutes. 10. Relevant paragraph in Dunlop case is paragraph No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability 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 this Court to supply emphasis and highlight) 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same read as follows: Paragraph No.15 of Whirlpool principle: '15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.' Paragraph No.7 of Harbanslal principle: '7. So far as the view taken by the High Court that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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