TMI Blog2021 (10) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... e same should not come in the way of a Statutory appeal i.e., this order should not in any way either impede or serve as a impetus if the writ petitioner chooses to avail alternate remedy and statutory appeal under Section 51 of TNVAT Act. Petition dismissed. - W.P.No.20130 of 2021 And W.M.P.Nos.21402, 21404 & 21406 of 2021 - - - Dated:- 22-9-2021 - Hon'ble Mr.Justice M.Sundar For the Petitioner : Mr.Sujit Ghosh for Mr.A.K.Rajaraman For the Respondent : Ms.Amirta Dinakaran, Government Advocate ORDER Captioned writ petition arises 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]. 2. An 'order dated 30.07.2021 bearing reference No.33100561230/2014-15' [hereinafter 'impugned order' for the sake of convenience and clarity] made by the second respondent has been called in question/assailed in the captioned main writ petition. 3. Though the impugned order does not mention the provision of law under which it has been made, it is submitted that a perusal of the impugned order brings to light that it has been made under Section 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel, notwithstanding very many case laws (slew of case laws rather) that were placed before this Court pressed into service one case law and that is Seema Ghosh case law [Seema Ghosh Vs. Tata Iron and Steel Co., reported in (2006) 7 SCC 722] ; (b) The impugned order has been made without appreciating the correct obtaining position of law and it has levied tax resulting in a jurisdictional impediment and therefore, this is effectively violation of Article 265 of the Constitution of India; 7. I have carefully considered the submissions advanced by learned counsel appearing on behalf of writ petitioner, I am not inclined to interfere qua the impugned order and the reasons are as follows: (a) There is a statutory appeal provided under TNVAT Act as against the impugned order and this statutory appeal is available to writ petitioner under Section 51 of TNVAT Act. Therefore, there is an alternate remedy; (b) There is nothing to demonstrate that alternate remedy is not efficacious; (c) Alternate remedy does not fall in any of the exceptions adumbrated by Hon'ble Supreme Court in a recent judgment rendered in Commercial Steel Limited case [The Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... don 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 types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent.' (h). This takes us to Seema Ghosh case law which was pressed into service by the learned counsel for writ petitioner; (i). A careful perusal of Seema Ghosh case law brings to light that it pertains to Labour law and it pertains to an award made by a Labour Court. That was a case where Hon'ble Supreme Court held that the Labour Court passed an award contrary to law laid down by Hon'ble Supreme Court as a measure of what has been described as 'misplaced sympathy' by Hon'ble Supreme Court and was thus perverse. Therefore, Seema Ghosh case law stands entirely on a different footing. Applying Seema Ghosh principle to the case on hand, which arises under a fiscal Statute would tantamount to comparing Apples and Oranges or like comparing chalk and cheese. Suffice to say that Seema Ghosh case law does not aid the writ petitioner in the case on hand and I would rather go by Commercial Steel Limited judgment rendered recently on 03.09.2021 by Hon'ble Supreme Court which is preceded by a long line of authorities/catena of case laws including but not limited to Dunlop India case law, Satyawati Tandon principle and K.C.Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l if the argument finds favour with the Appellate authority. Interference on such grounds at the first tier of a multitiered redressal mechanism under fiscal Statute gives scope to an assessee to perambulate in the first orbit i.e., first tier without moving to the second orbit. This does not serve the purpose of either side. As a sequitur, this Court observes that this only leaves the assessee with uncertainty and Revenue not being able to move to next tier of mechanism, so that it can ultimately recover tax dues if the liability is finally and conclusively confirmed; (k). I am unable to persuade myself to believe that the Appellate Authority cannot correct the aforementioned error (if that be so) and on a demurrer, even if it be a case of perversity, that can always be corrected by the Appellate Authority and it does not involve an exception warranting interference under Article 226 of the Constitution of India in fiscal law, more particularly, when the objections have been considered and when Hon'ble Supreme Court has repeatedly held that exceptions have to be applied strictly in fiscal law; (l). Interestingly and intriguingly, I find that the writ affidavit refers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed that this order was carried in an appeal by way of a writ appeal being W.A.No.4073 of 2019 and a Hon'ble Division Bench vide order dated 16.12.2019 has confirmed this order. Most relevant paragraph of my order is paragraphs Nos.23 and 24. This is mentioned to say that this is not a case where reasonable opportunity to show cause has not been given to writ petitioner. This is also not a case where the second respondent has not closed his eyes and accepted the submissions made by Enforcement Wing. In other words, the second respondent has applied his mind and made the impugned order (on a demurer, erroneous may be as contended by writ petitioner) and therefore, it does not warrant interference in exercise of powers under Article 226 of Constitution of India on this facet also. As I am taking the view that this case does not warrant interference under Article 226 of Constitution of India, in the light of alternate remedy, I refrain from expressing any opinion or view on merits of the matter and traces or trappings of observations on merits which may appear to have been made in this order are for the limited purpose of disposal of captioned writ petition and therefore, the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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