2017 (7) TMI 878 - HC - VAT and Sales Tax

Input tax credit - cancellation of registration of dealers - Held that - In the counter affidavit filed by the respondent in both the Writ Petitions which are more or less identical, the respondent has stated that the petitioner has to avail the alternate remedy of filing an appeal as against the impugned assessment orders and in this regard referred to the orders passed by the Division Bench. So far as the availment of the alternate remedy provided under the statue, it is not an universal rule that in all cases, the aggrieved parties have to be relegated to avail the alternate remedy and the Courts have carved out exceptional circumstances where the High Court can exercise jurisdiction under Article 226 of the Constitution, despite existence of an alternate remedy. Therefore, the facts of the each case have to be gone into to decide as to whether the petitioner should be relegated to avail the alternate remedy - the matter is remitted back to the respondent with a direction to consider the request of the petitioner for furnishing the copies of the statements and records and an opportunity of cross examination - petition allowed by way of remand.

Summary

Issues:
Challenge to assessment orders for the years 2001-02 & 2002-03 under TNGST Act and CST Act. Validity of assessment without affording an opportunity for cross-examination and perusal of documents. Relevance of earlier judgment in W.P.No.14851 of 2005.

Analysis:
The petitioner, a registered dealer, challenged assessment orders for 2001-02 & 2002-03 under TNGST Act and CST Act. The impugned orders were revisions of assessment under Section 16 of TNGST Act. The respondent disbelieved transactions involving Mr. Mahendra Kumar Jain but did not question all transactions, unlike in a previous case. The petitioner sought copies of statements and cross-examination to establish the genuineness of transactions. The High Court noted that the registration of dealers was canceled after the relevant assessment year. The court allowed the writ petition and issued directions based on previous orders.

In response, the respondent argued that the petitioner should avail the alternate remedy of filing an appeal against the assessment orders. However, the High Court can intervene under Article 226 of the Constitution in exceptional circumstances. Referring to the earlier judgment in W.P.No.14851 of 2005, the court reiterated the importance of affording an opportunity for cross-examination and perusal of documents before completing assessments.

The court cited a Supreme Court case where reliance on statements from third parties without the opportunity for cross-examination was deemed unfair. The petitioner had submitted objections and requested cross-examination, which were not adequately addressed. The court found a violation of natural justice principles, rendering the impugned order unsustainable. Therefore, the writ petitions were allowed, setting aside the impugned orders and remitting the matter back to the respondent for proper consideration with directions for providing copies of statements and records and allowing cross-examination. No costs were awarded, and the connected Miscellaneous Petitions were closed.