TMI Blog2021 (10) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of all concerned. In the present case, there is no disputation or disagreement that the writ petitioner has been given an opportunity of personal hearing vide communication dated 11.02.2021, but the writ petitioner did not respond/avail the same. Therefore, the only grievance of the writ petitioner is, mismatch ought to have been examined by the Assessing Officer though the writ petitioner has not responded. However, learned Revenue counsel points out that it would have been examined if the dealer/writ petitioner had responded - There is no disputation or disagreement before this Court that alternate remedy against impugned orders is available to writ petitioner-dealer by way of statutory appeal under Section 51 of TNVAT Act. The campaign against impugned orders in writ jurisdiction in the captioned main writ petitions fail. However, it is made clear that it is open to the writ petitioner to avail alternate remedy under Section 51 of TNVAT Act, if the writ petitioner chooses to do so, subject to limitation and pre-deposit conditions set out therein, i.e., if the writ petitioner satisfies these conditions and takes alternate remedy route i.e., statutory appeal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order' in singular wherever necessary (if it becomes necessary). 3. Mr.Manoharan Sundaram, learned counsel for writ petitioner in all the six writ petitions, who is before this Virtual Court submits that this is the second round of litigation. The respondent had made revisional/reassessment orders earlier, the same were called in question/assailed by the writ petitioner by way of six writ petitions in this Court being W.P.Nos.5818 to 5823 of 2018 and all these six writ petitions together with writ miscellaneous petition Nos.7155 to 7160 of 2018 thereat came to be disposed of by a Hon'ble Single Judge in and by a common order dated 15.03.2018. 4. Adverting to aforementioned common order in earlier round of litigation and more particularly paragraph Nos.3 and 5 thereat, learned counsel submitted that this is a case of mismatch and if the dealer at the far end had not paid the tax, the writ petitioner cannot be penalized for the same. According to learned counsel for writ petitioner, the impugned orders are not in accordance with directions given by this Court in the aforementioned previous common order, more particularly, paragraph No.3 thereat wherein paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law under which it has been made. However, in this case, there is no disputation or disagreement between the parties that the impugned orders have been made under Section 27 of TNVAT Act. By way of reply, learned counsel for writ petitioner besides reiterating his submissions made in the opening arguments, submitted that personal hearing was no doubt offered vide 11.02.2021 communication, but the respondent should have gone into the question of whether the dealer at the far end has paid the tax, the same has not been done in spite of specific observations in this regard made by this Court in aforementioned previous common order dated 15.03.2018. 8. This Court now considers the rival submissions or in other words, this Court now embarks upon the exercise of discussion, dispositive reasoning and arriving at a conclusion. 9. At the outset, this Court is clear in its mind that personal hearing is not statutorily imperative for a legal drill i.e., assessment of escaped turnover/wrong availment of 'Input Tax Credit' ['ITC']. This is owing to the language in which common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act is couched. Common proviso to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal by way of intra- Court appeal vide W.A.No.4073 of 2019 and a Hon'ble Division Bench of this Court dismissed the writ appeal in and by order dated 16.12.2019. Therefore, the order of this Court made in State Bank of India officers case law, has been sustained vide order of Hon'ble Division Bench. 11. Be that as it may, in State Bank of India officers case law, this Court noticed that the language in which proviso to sub-section (4) of Section 22 of TNVAT Act is couched is different from the language in which common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act is couched. This Court observed that the expression used in sub-section (4) of Section 22 of TNVAT Act is 'a reasonable opportunity of being heard'. This is distinguishable from the expression 'reasonable opportunity to show cause' and it was on this basis that this Court has held that personal hearing is not statutorily imperative qua a legal drill under Section 27 of TNVAT Act. However, it is not necessary to dilate or elaborate further on this facet of the case on hand, as this Court has considered it appropriate to direct the respondent to give personal hearing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and K.C.Mathew [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. reported in (2018) 3 SCC 85]. To be noted, these are only illustrative and not exhaustive. 14. Relevant paragraph in Dunlop case is paragraph No.3 and relevant portion of the same reads as follows: ' 3. ....... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 16. To be noted in paragraph No.10 of K.C.Mathew's case, Satyawati Tondon principle has been extracted and reproduced. Therefore, this Court refrains itself from embarking upon exercise of extracting and reproducing relevant paragraphs from Satyawati Tondon case law. More importantly, in a very recent judgment in Commercial Steel Limited case [ Civil Appeal No 5121 of 2021, The Assistant Commissioner of State Tax and Others Vs. M/s Commercial Steel Limited ], Hon'ble Supreme Court i.e., a three member Bench of Hon'ble Supreme Court speaking through Hon'ble Justice Dr.Dhananjaya Y Chandrachud reiterated this alternate remedy rule and held that writ jurisdiction can be exercised only if any of the exceptions arise, exceptions have also been adumbrated and all these are captured in paragraph Nos.11 and 12 of Commercial Steel Limited case which read as follows: '11 The respondent had a statutory remedy under section 107. Instea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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