TMI Blog2022 (5) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... )No.333 of 2022 And W.M.P.(MD)No.255 of 2022 - - - Dated:- 10-1-2022 - Hon'ble Mr. Justice M.Sundar For the Petitioner : Mr.A.Satheesh Murugan For the Respondents : Mr.T.Amjadkhan, Government Advocate for M.Lingadurai, Special Government Pleader ORDER Captioned writ petition has been filed assailing an 'order dated 14.01.2020 bearing reference TIN:33594901441/2012-13 made by the second respondent' (hereinafter 'impugned order' for the sake of brevity, convenience and clarity). 2. The impugned order has been made under Section 27 of 'Tamil Nadu Value Added Tax Act, 2006 (Tamil Nadu Act 32 of 2006)' [hereinafter 'TNVAT Act' for the sake of brevity, convenience and clarity]. 3. Mr.A.Satheesh Murugan, learned counsel on record for writ petitioner and Mr.T.Amjadkhan, learned Government Advocate representing Mr.M.Lingadurai, learned Special Government Pleader, who accepts notice on behalf of both the respondents are before this Court, with the consent of learned counsel on both sides main writ petition was taken up, heard out, owing to the short point involved and the narrow compass on which the captioned main writ petition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealers at the other end and documents were not supplied. 6. In response to the aforementioned arguments of the learned counsel for writ petitioner, learned State Counsel made the following submissions: a) the writ petitioner has sent a terse three sentences reply to the pre-revision notice and not even sent any enclosures much less asked for cross examination; b) the writ petitioner has not availed of the multiple opportunities given to him after the pre-revision notice, as the Assessing Officer sent another notice i.e., a second notice dated 14.05.2019 for which the writ petitioner did not reply. Notwithstanding this, the Assessing Officer sent one more notice dated 24.09.2019 fixing personal hearing on 03.10.2019 at 12.30 p.m., but the writ petitioner neither replied nor availed the personal hearing; c) the Assessing Officer, notwithstanding the above scenario has done verification and the whole process is based on further verification and therefore, it cannot be gain said that JKM Graphics principle or Mangalam Stores case ratio has been given a go by; and d) there is an alternate remedy for the writ petitioner by way of a statutory appeal under Section 51 of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsels appearing for the parties and perused the materials on record.' In the case on hand, as would be evident from the facts above, writ petitioner has sent only a three sentence terse reply without any enclosures to the first pre-revision notice and thereafter not replied to the second pre-revision notice dated 14.05.2019 and has not availed of the personal hearing though it was granted vide notice dated 24.09.2019 (fixing personal hearing on 03.10.2021 at 12.30 p.m.). The terse reply sent by the writ petitioner to the first revision notice dated 26.12.2018 is as follows: Before proceeding further it is pertinent to remind oneself that this Court has already held in SBI Officer's association case [State Bank of India Officer's Association (CC) SBIOA Vs. The Assistant Commissioner (ST), Chennai] , being order dated 01.08.2019 in W.P.No.22634 of 2019 that for proceedings under Section 27 of TNVAT Act in the light of the common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act, a personal hearing is not statutorily imperative. This Court has held that it will suffice if sufficient opportunity to show cause is given. That view was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, both the case laws are do not come to the aid of the writ petitioner in the case on hand. This douses the first and sheet anchor argument of the learned counsel for the writ petitioner; c) The argument of the learned State Counsel that there has been further verification cannot be completely brushed aside. These are matters which turn on facts and examination of records could have well be done in statutory appeal. Writ petitioner has bypassed the statutory appeal and has come to this Court that too two years post impugned order with the captioned writ petition. Therefore, this also weighs against the writ petitioner in the case on hand; d) There is an alternate remedy qua impugned order by way of a statutory appeal under Section 51 of TNVAT Act. As already alluded to supra, the matter may turn on facts when it comes to examination of records as to the verification done. The appellate authority could have always look into these matters. There is no reason much less a tenable or acceptable reason that has been set out in the case on hand as to why the writ petitioner has not availed the alternate remedy. This takes this Court to the alternate remedy rule. Alternate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA 5121/2021 7 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.' In this regard i.e., with regard to exceptions this Court also reminds itself about Whirlpool case law being Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1 . Whirlphool case law is such an oft quoted case law that the same has to stay in litigation parlance as 'Whirlpool exceptions'. Relevant paragraph in Whirlpool case law is paragraph 15 and the same is as follows: '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 effi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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