TMI Blog2021 (10) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... R, STATE BANK OF TRAVANCORE AND ANOTHER VERSUS MATHEW K.C. [ 2018 (2) TMI 25 - SUPREME COURT ] , has held that when it comes to Revenue matters, the alternate remedy rule should be applied with utmost rigour. If the writ petitioner chooses to file appeal under Section 51 or revision under Section 54 as the case may be (subject to limitation) the same can be dealt with on its own merits and in accordance with law by the appellate authority or revisional authority as the case may be - If the appellate authority or the revisional authority as the case may be entertains the appeal or revision (subject of course to limitation), the observation made in this order will neither be an impediment nor serve as an impetus qua appeal or revision, in other words, the appellate authority or revisional authority shall deal with it on its own merits and in accordance with law untrammeled by any observation made in this order. Petition dismissed. - W.P.No.21363 of 2021 And W.M.P.No.22609 of 2021 - - - Dated:- 5-10-2021 - THE HONOURABLE MR.JUSTICE M.SUNDAR For Petitioner : Mr.C.Baktha Siromoni For Respondent : Ms.Amrita Dinakaran Government Advocate ORDER This common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 of TNVAT Act, the expression 'giving the dealer a reasonable opportunity to show cause' has been used. In contra distinction in the proviso to Section 27(4) of the TNVAT Act the expression 'the dealer shall be given a reasonable opportunity of being heard' has been used. I had dealt with these two expressions and the contra distinction qua these two expressions in an elaborate order in State Bank of India Officer's Association (CC) SBIOA rep. by its General Secretary Vs. The Assistant Commissioner (ST) Muthialpet Assessment Circle, Chennai (W.P.No.22634 of 2019 dated 01.08.2019) and the most relevant paragraph therein is paragraph 41. This Court is informed that this order of mine has not been reported in any Law Journal. Therefore, I am mentioning the date of the order and the case number. Paragraph 41 reads as follows: '41. This takes us to the alternate remedy available to the writ petitioner in the instant case. This Court is informed without disputation or disagreement by both sides that an alternate remedy is available to the writ petitioner qua the impugned order by way of an appeal to the jurisdictional Appellate Deputy Commissioner under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, at any time, within a period of five years from the date of order of assessment, reverse input tax credit availed and determine the tax due after making such a enquiry, as it may consider necessary: Provided that no order shall be passed under subsections (1) and (2) without giving the dealer a reasonable opportunity to show cause against such order. 9.In the instant case, as would be evident from the trajectory which lead to the impugned order has been captured supra, it is clear that more than reasonable i.e., adequate and ample opportunity has been given to the writ petitioner for showing cause against the impugned order. So there can be no grievance in this regard. 10.This takes me back to the lone pivotal submission that has been canvassed by the learned counsel for writ petitioner in his campaign against the impugned order i.e., the submission that reversal of ITC if at all and if that be so, can be only for excess of 5% of tax and the impugned order has contravened this. This argument may at best qualify as a good ground for an appeal or revision as the case may be. I am constrained to say appeal or revision as the case may be as if the impugned order is const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.' (Underlining made by this Court to supply emphasis and highlight) Paragraph 10 of K.C.Mathew case '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees , other type ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Steel case [The Assistant Commissioner of State Tax Appellant(s) and Others Vs.M/s Commercial Steel Limited] vide order dated 03.09.2021 in Civil Appeal No.5121 of 2021 has clearly held that though the alternate remedy rule is not absolute, a writ petition under Article 226 of the Constitution of India can be entertained only in exceptional circumstances (in revenue matters) and the exceptions have been carved out and adumbrated in paragraph 11. Paragraph 12 of Commercial Steel case is also of relevance. Paragraphs 11 and 12 of Commercial Steel case read as follows: '11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12 In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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