2019 (6) TMI 1315 - HC - VAT and Sales Tax

Deemed assessment - grant of one more opportunity to the writ petitioner to produce books of accounts as well as purchase and sales details - TNVAT Act - alternate remedy of appeal - HELD THAT - It is not in dispute that the writ petitioner has an alternate remedy by way of an appeal under Section 51 of TNVAT Act. There is no disputation or disagreement before this Court that this appeal i.e., alternate remedy, lies to the Appellate Deputy Commissioner of Commercial Taxes (East). In other words, it lies to the jurisdictional Deputy Commissioner of Commercial Taxes - With regard to alternate remedy, there are a long line of authorities rendered by Hon'ble Supreme Court. In the instant case, it is also brought to the notice of this Court that the statutory appeal i.e., alternate remedy, has to be preferred within 30 days from the date of receipt of the impugned order. It is submitted that the impugned order dated 30.04.2019 was received by the writ petitioner on 09.05.2019. Be that as it may, it is brought to the notice of this Court that under Section 51 of TNVAT Act, there is a provision for Appellate Authority to condone delay albeit subject to a cap of 30 days. In other words, there is a cap of 30 days. The writ petitioner is well within this 30 days. This Court is not interfering with the impugned order in the light of alternate remedy or in other words by applying the rule of alternate remedy - It is open to the writ petitioner to prefer an appeal to the aforesaid Appellate Authority i.e, Appellate Deputy Commissioner of Commercial Taxes (East) - petition disposed off.

Summary

Issues:
1. Failure to respond to summons for scrutiny under TNVAT Act
2. Imposition of penalty under Section 27(4) of TNVAT Act
3. Availability of alternate remedy under Section 51 of TNVAT Act

Analysis:
1. The writ petitioner, a dealer under TNVAT Act, failed to respond to summons for scrutiny. The respondent passed an order imposing penalty due to non-cooperation by the petitioner. The petitioner claimed inability to respond to summons due to ill-health, supported by an outpatient registration and diagnostic report. However, the court found no evidence of advised bed rest or inability to attend to work. The petitioner's argument for one more opportunity was rejected, and the court emphasized the need for the petitioner to make alternate arrangements if unable to comply.

2. The penalty imposed under Section 27(4) of TNVAT Act was challenged by the petitioner, citing that the summons and notices issued proposed revisions under Section 27(1)(2). The court decided to leave this question open due to the availability of an alternate remedy through an appeal under Section 51 of TNVAT Act. The court highlighted the importance of exhausting alternate remedies before seeking judicial intervention, as per established legal principles and Supreme Court judgments.

3. The court discussed the principle of alternate remedy in tax-related matters, citing precedents emphasizing the need to exhaust statutory remedies before approaching the court. The court noted that the petitioner had the option to appeal to the Appellate Deputy Commissioner of Commercial Taxes within 30 days of receiving the impugned order. The court clarified that it would not interfere with the impugned order, directing the petitioner to pursue the appeal process. The petitioner was advised to seek "Condonation of Delay" if required, and the Appellate Authority would consider the matter on its merits, including examining relevant documents if necessary. The court disposed of the writ petition with these observations, emphasizing the importance of following the statutory appeal process before seeking judicial review.