2019 (12) TMI 1545 - HC - VAT and Sales Tax

Maintainability of appeal - availability of efficacious remedy or not - appealable order or not - Violation of principles of natural justice - impugned order passed without grant of opportunity of hearing - requirement of pre-deposit for filing appeal - HELD THAT - The order passed by the learned Single Judge relegating the Petitioner/Assessee to avail the regular remedy before the first Appellate Authority does not call for any interference by this court in the intra-court Appeal. The alleged grounds relating to breach of principles of natural justice by the Assessing Authority the binding nature of the Commissioner s Circular are all possible grounds which the Appellant/ Assessee can very well raise before the Appellate Authority. Merely because there are allegations of breach of principles of natural justice all Writ Petitions against appealable orders cannot be entertained by this Court under Article 226/227 of the Constitution of India as the Statute has provided alternative and effective remedies to the Assessee aggrieved by the orders passed by the Assessing Authority and even if there is allegation of principles of natural justice that can very well be raised before the Appellate Authority who can also very well remand the case back to the Assessing Authority - the Rule of alternative remedy is always a Rule of Discretion for the Writ Court and not a Rule of Bar of jurisdiction. The learned Single Judge has not erred in relegating the Petitioner/Assessee to the first Appellate Authority under the statute - Appeal dismissed.

Summary

Issues:
1. Alleged violation of principles of natural justice in passing the impugned order.
2. Challenge regarding the Circular issued by the Commissioner of Commercial Taxes.
3. Relegation of the Petitioner/Assessee to avail the regular remedy before the first Appellate Authority.
4. Interpretation of the Rule regarding alternate remedy in the context of principles of natural justice and jurisdiction.

Issue 1: Alleged violation of principles of natural justice in passing the impugned order:
The Appellant contended that there was a gross violation of principles of natural justice in passing the impugned order. The learned Single Judge dismissed the Writ Petition filed by the Assessee/Appellant, preserving the right to avail alternate remedy by filing an appeal to the jurisdictional Appellate Deputy Commissioner under Section 51 of TNVAT Act. The Appellant argued that despite a Circular issued by the Commissioner of Commercial Taxes, Chennai to grant an opportunity of hearing, the impugned order was passed in breach of natural justice. The Appellate Authority requires a pre-deposit for filing an appeal, making the appeal remedy onerous.

Issue 2: Challenge regarding the Circular issued by the Commissioner of Commercial Taxes:
The Appellant raised concerns about the Circular issued by the Commissioner of Commercial Taxes, Chennai, emphasizing the importance of granting an opportunity of hearing. However, despite this Circular, the Appellant alleged a breach of natural justice in the passing of the impugned order. The Appellant argued that this aspect was not adequately considered by the learned Single Judge, leading to the dismissal of the Writ Petition.

Issue 3: Relegation of the Petitioner/Assessee to avail the regular remedy before the first Appellate Authority:
The Court, after hearing arguments from both parties, opined that the order passed by the learned Single Judge, relegating the Petitioner/Assessee to avail the regular remedy before the first Appellate Authority, did not warrant interference in the intra-court Appeal. The Court highlighted that the alleged grounds concerning breach of principles of natural justice and the binding nature of the Commissioner's Circular could be raised before the Appellate Authority, which had the power to address these issues and even remand the case back to the Assessing Authority.

Issue 4: Interpretation of the Rule regarding alternate remedy in the context of principles of natural justice and jurisdiction:
The Court clarified that merely alleging a breach of principles of natural justice does not automatically entitle a Writ Petition against an appealable order to be entertained under Article 226/227 of the Constitution of India. The Court emphasized that the Statute provides alternative and effective remedies for Assessees aggrieved by orders passed by the Assessing Authority. The Rule of alternative remedy is a discretionary principle for the Writ Court, not a jurisdictional bar. The Court concluded that the learned Single Judge did not err in relegating the Petitioner/Assessee to the first Appellate Authority, as the Rule of alternative remedy should be applied judiciously and exceptionally.

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