TMI Blog2022 (1) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ls. This apart, in a writ petition, if such orders are passed with jurisdictional errors and quashed without any remand, then an injustice would be caused to the very spirit of the statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent - the higher authorities of the Department are expected to be watchful and review the orders passed by the subordinate authorities and in the event of any negligence, dereliction of duty, collusion or corrupt activities, such officials are liable to be prosecuted apart from initiation of departmental disciplinary proceedings. The procedures to be followed in the department for assessment are well settled. Thus, the authorities competent are not expected to commit such jurisdictional errors in a routine manner. The review of such orders by the higher authorities are imminent to form an opinion that there is willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Liability and jurisdictional errors a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factual aspects, resulted in violation of principles of natural justice. The petitioner has raised a point of jurisdiction also. In view of the fact that there is violation of principles of natural justice, the writ petition is to be entertained. 4.The learned counsel for the petitioner, in order to substantiate the grounds, solicited the attention of this Court with reference to Section 19 of the TNVAT Act. It is contended that an amendment was issued in the Tamil Nadu Act, 13 of 2015 with effect from 29.01.2016, and the said amendment cannot be applied as far as the impugned assessment orders in these writ petitions are concerned. 5.The learned counsel for the petitioner reiterated that in all these cases, the assessment years are falling prior to the amendment on 29.01.2016 and therefore, the pre-amended provision under Section 19 for an input tax credit is to be considered for the purpose of passing an assessment order. Pre-amendment provision in Section 19 enumerates that there shall be input tax credit of the amount of tax paid or payable under the TNVAT Act, by the registered dealer to the seller on his purchases of taxable goods specified in the First Schedule. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant a reasonable opportunity of being heard, and for the sufficient reasons to be recorded in writing (a) in the case of an order of assessment, (i) confirm, reduce, enhance or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as he may think fit; or (b) in the case of any other order, confirm, cancel or vary such order. Proviso to Section 51(3) provides that at the hearing of any appeal, the appropriate authority shall have the right to be heard either in person or by a representative. 9.Section 58 of the Act provides an appeal to the Appellate Tribunal. Sub-Section (1) of Section 58 enumerates that any officer prescribed by the Government or any person objecting to an order passed by the Appellate Deputy Commissioner under sub-Section (3) of Section 51, or by the Appellate Joint Commissioner under Sub-section (3) of Section 52, or by the Joint Commissioner under sub-Section (1) of Section 53, may, (a) within a period of one hundred and twenty days, in the case of an officer so prescribed by the Government; (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mixed question of fact and law with reference to the documents and evidences in original. High Court cannot resolve the disputed issues between the parties only based on the affidavits filed in the writ petitions. There is a possibility of omissions and commissions. Thus, adjudication before the appellate authority with reference to such disputed findings of the original authority would be of greater importance. 13.The learned counsel for the petitioners raised a point that the impugned assessment orders are passed by the original authority by applying the post-amended provision of the TNVAT Act, which is total non application of mind. Thus, a writ proceedings is entertainable. Even in such case of erroneous application of the provisions of the TNVAT Act, the appellate authority is empowered to correct the same and they are empowered to consider all the legal grounds raised by the parties by affording opportunity. The appeal provision itself contemplates the powers of the appellate authority and they possess enough powers to deal with all issues including the jurisdictional issues and other legal grounds raised by the respective parties. 14.This Court elaborately discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) The supremacy of the Constitution. (2) Republican and Democratic form of government and sovereignty of the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the Legislature, the executive and the judiciary. (5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. [MANU/SC/0445/1973 : (1973) 4 SCC 225]. That separation of powers between the legislature, the executive and the judiciary is the basic structure of the Constitution is expressly stated by Sikri, C.J. 3. P. Kannadasan and Ors. v. State of T.N. and Ors. [MANU/SC/0650/1996 : (1996) 5 SCC 670 ] the Supreme Court noted that the Constitution of India recognised the doctrine of separation of powers between the three organs of the State, namely, the legislature, the executive and the judiciary. The Court said: It must be remembered that our Constitution recognises and incorporates the doctrine of separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Constitution to declare a law made by the legislature (Parliament and State legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution. (v) The doctrine of separation of powers applies to the final judgments of the courts. Legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aligned. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. (vi) If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r factors. 2 . KanaiyalalLalchand Sachdev and Ors. vs. State of Maharashtra and Ors . (07.02.2011 - SC) : MANU/SC/0103/2011 It is well settled that ordinarily relief Under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.) 3. Commissioner of Income Tax and Ors. v. ChhabilDass Agarwal , MANU/SC/0802/2013 : 2014 (1) SCC 603, as follows: Para 15. while it can be said that this Court has recognised some exceptions to the Rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in ThansinghNathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition Under Article 226 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 6 . K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors., AIR (1954) SC 207; Sangram Singh v. Election Tribunal, Kotah and Ors., AIR (1955) SC 425; Union of India v. T.R. Varma, AIR (1957) SC 882; State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR (1966) SC 1089 , Constitution Benches of the Supreme Court held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on the face of the record, are on merits and all are to be adjudicated before the appellate authority and the appellate authority, more specifically, the Appellate Tribunal or the Commissioner (Appeals), as the case may be, is empowered to adjudicate all such legal grounds raised by the respective parties and make a finding on merits. Thus, usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority, which is certainly not desirable. 16.Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal are to be decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise. However, the Courts are expected to ensure that all such legal grounds available to the parties are adjudicated before the proper forum and only after exhausting the statutory remedies, writ petitions are to be entertained. In the absence of exhausting such remedies, High Court is losing the benefit of deciding the matter on merits, as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide unnecessary opportunities to the assessee to escape from the liability merely on the ground of jurisdictional error, which is rectifiable. 19.These being the principles to be followed, this Court has no hesitation in arriving a conclusion that the petitioner is bound to exhaust the statutory appellate remedy as contemplated under the provisions of the TNVAT Act. Thus, the petitioner is at liberty to approach the appellate authority by filing appeal/rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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