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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. Sundar, J.
N. Parameswaran, Proprietor, Advaith Consultancy Rep. by Power Agent P. Sivakumar, Tirupur – Petitioner
Versus
The State Tax Officer TNVAT, Dharapuram – Respondent
W.P. No. 20285 of 2021 & W.M.P. No. 21538 of 2021
Decided On : 23-09-2021
Constitution of India, 1950 - Article 226 - Tamil Nadu Value Added Tax Act, 2006 - Section 27 , 22(2), 22(6)(a), 84, 13(1)(a), 51, 22, 24, 26, sub-sections (1), (2), (3) and (4) of section 27, 28, 29, 34 or sub-section (2) of section 40, 58 – Securitisation and Reconstrution of Financial Assets and Enforcement of Security Interest Act, 2000 - Section 13(4), 17, 18 – Central Sales Tax Act, 1956 - Section 8(2)(b) - Limitation Act, 1963 - Section 14 - Writ of Certiorari - Appeal to Appellate Deputy Commissioner - Breach of fundamental rights - Violation of principles of natural justice - Excess of jurisdiction - Challenge to vires of statute or delegated legislation – Assessee / Appellant to resort to writ jurisdiction invariably in all circumstances for alleged breach of principles of natural justice - Whether case law was actually pressed into service - Whether it forms part of records of first Appellate Authority - Whether writ petitioner should avail alternate remedy of filing a regular statutory appeal to State Tribunal – Held, this Court is inclined to accept submission of State Counsel that under facts and circumstances of instant case, this is a fit case to relegate writ petitioner to alternate remedy i.e., appeal to TNSTAT - It is a matter of serious concern that despite repeated pronouncement of this Court, High Courts continue to ignore availability of statutory remedies under DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on right of banks and other financial institutions to recover their dues - We hope and trust that in future High Courts will exercise their discretion in such matters with greater caution, care and circumspection - So far as view taken by High Court that remedy by way of recourse to arbitration clause was available to appellants and writ petition filed by appellants was liable to be dismissed is concerned, suffice it to observe that rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion - In spite of availability of alternative remedy, High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged - Applicability of first two contingencies - Petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause - Appellants should have been allowed relief by High Court itself instead of driving them to need of initiating arbitration proceedings - Writ petition is dismissed
JUDGMENT :
(Prayer: Writ petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari calling for the records on the file of the respondent in TIN:33563023419/2015-16 dated 19.07.2021 and consequently notice under Form O dated 19.07.2021 and Form RR dated 19.07.2021, quash the same.)
1. Captioned writ petition and writ miscellaneous petition therein are in the Admission Board.
2. In the captioned main writ petition an 'order dated 19.07.2021 bearing reference TIN:33563023419/2015-16' (hereinafter 'impugned order' for the sake of brevity and convenience) made by the sole respondent has been called in question.
3. This is effectively the second round of litigation in tier I in the hierarchy of tax assessment mechanism.
4. Ms.Amitra Dinakaran, learned Revenue counsel accepted notice on behalf of lone respondent and the main writ petition was taken up with the consent of both sides as the matter turns on a short point.
5. Impugned order does not mention the provision of law under which it has been made. Learned Revenue counsel submits on instructions that the impugned order has been made under Section 27 of 'the Tamil Nadu Value Added Tax Act, 2006 (Tamil Nadu Act 32 of 2006)' ['TNVAT Act' for the sake of brevity, clarity and convenience].
6. Be that as it may, suffice to say that impugned order pertains to re-assessment qua writ petitioner under TNVAT Act for the Assessment year 2015-16.
7.Short facts are that the writ petitioner is a dealer in works contract; that writ petitioner was filing monthly returns; that there was deemed assessment under Section 22(2) of TNVAT Act; that for the relevant 'Assessment year 2015-16' (hereinafter 'said AY' for the sake of convenience), the dealer obtained what is known as 'S Certificate' for a turn of over Rs.4.87 Crores; that according to the Revenue, on subsequent verification of records, it came to light that the dealer has not filed evidence for completion of work executed by him; that therefore revised Assessment Order was issued; that the writ petitioner dealer requested revision under Section 22(6)(a) of TNVAT Act, but this was declined on the ground that the order was not made under Section 22(4); that the dealer approached this Court by way of writ petition vide W.P.No.8414 of 2021 which was disposed of on 01.04.2021 inter alia giving some directions turning on Section 84 of TNVAT Act; that thereafter the impugned order came to be made.
8. Learned counsel for writ petitioner notwithstanding very many averments and very many grounds in the writ affidavit assailed the impugned order on broad focussed grounds, a summation of which is as follows:
(b) There is no transfer of property and there can be no deduction and the impugned order is therefore clearly in contravention of Section 13(1)(a) of TNVAT Act.
9. Learned Revenue counsel in response to the above submissions, made submissions, a summation of which is as follows:
(b) The second point turning on Section 13(1)(a) of TNVAT Act turns on merits of the matter and there is an appeal remedy available to the writ petitioner under Section 51 of TNVAT Act.
10. In response to the above, notwithstanding a pile of case laws, which have been circulated in a compilation captioned 'CITATIONS TYPED-SET', learned counsel pressed into service the celebrated Gannon Dunkerley & Co. and Ors. Vs. State of Rajasthan and Ors. reported in (1993) 88 STC 204 (SC) for principles regarding deductions qua works contract.
11. This Court carefully considered the submissions made on either side.
12. There is no disputation or d
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