ORDER

This writ petition is filed challenging the assessment order dated

30.12.2013 passed by the Assistant Commissioner (CT), Thiyagaraya Nagar (East) Assessment Circle for the assessment year 2012-13.

2. The issue raised in this writ petition is that the Assessing Officer has erroneously applied the provisions of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as “the TNVAT Act”) and passed the assessment order which resulted exercise of jurisdiction erroneously and thus, the petitioner is contrained to move this writ petition.

3. The learned counsel for the petitioner made a submission that the case on hand is a fit case for remand to the original authority for appeal. It is contended that the impugned order has been passed without considering the fact that the law on the subject is settled.

4.The learned counsel for the petitioner reiterated that in this case, the assessment year is 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 under 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 proviso states that “the registered dealer, who claims input tax credit, shall establish that the tax due on such purchases has been paid by him in the manner prescribed. Sub-section (2) states that “input tax credit shall be allowed for the purchase of goods made within the State from a registered dealer and which are for the purpose of stated in the said provision. However, the respondent has erroneously implemented the amended Section 19 with reference to the assessment years falling prior to the amendment. Thus, the order of assessment was passed without any application of mind and thus, there is a jurisdictional error in application.

5.It is contended on behalf of the petitioner that, when the impugned order is passed with jurisdictional error and based on erroneous application of law, then a writ petition is to be entertained without exhausting the statutory appellate remedy provided under the Act itself. It is not in dispute that there is an appeal remedy made available in the statute. However, it is contended that exhaustion of an alternate remedy is not mandatory in the present case, as the Assessing Officer has not applied his mind and there is lack of jurisdiction. In view of the fact that the impugned order is passed without any application of mind, the petitioner has chosen to file this writ petition without exhausting the appellate remedy and therefore, the appellate remedy is to be dispensed with and the matter is to be decided on merits.

6.The learned counsel for the petitioner relied on certain judgments in support of their contentions regarding the appellate remedy by stating that the High Courts and the Supreme Court have dispensed with the appellate remedy in many cases and therefore, the benefit of the judgments are to be extended in favour of the writ petitioner in the present writ petition.

7.This Court is of the considered opinion that Section 51 of the TNVAT Act provides appeal to the Appellate Deputy Commissioner. The appeal provision contemplates procedures also. Sub-section (2) of Section

51 stipulates that the appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed. Sub-section (3) of Section 51 denotes that in disposing of an appal, the Appellate Deputy Commissioner may, after giving the appellant 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