2021 (12) TMI 953 - HC - VAT and Sales Tax

Principles of natural justice - pre-revisional notices - sheet-anchor submission of learned Senior Counsel is if one more opportunity is given to the writ petitioner dealer, the writ petitioner dealer would now produce the books of accounts and the matter can be given a quietus by passing revisional orders afresh - HELD THAT - A careful perusal of the impugned orders reveal that it has not been referred to in all the impugned orders but in any event, the impugned orders deal with objections that have been raised by the dealer. The correctness or otherwise of the conclusions arrived at vide the impugned orders will have to be tested only in an appeal ie., in a statutory appeal under Section 51 of TN VAT Act. One of the reasons for this is, the matter turns heavily on facts and the appellate authority under Section 51 of TN VAT Act can also look at the books of accounts and come to a conclusion with regard to the points that are being urged. There is no disputation or disagreement that alternate remedy is available to the writ petitioner by way of a statutory appeal under Section 51 of TN VAT Act. The alternate remedy rule no doubt is not an absolute rule. In other words, the alternate remedy rule is a rule of discretion. It is not only a rule of discretion, it is a self restraint qua writ jurisdiction. The campaign of the writ petitioner qua the impugned orders in the captioned four writ petitions fail and the writ petitions are dismissed albeit making it clear that if the writ petitioner chooses the alternate remedy route and files statutory appeals, the same will be considered (subject of course to limitation and pre-deposit condition) by the appellate authority on its own merits and in accordance with law - this Court also makes it clear that this is the third round of litigation in the first tier of tax assessment and therefore, this Court is of the view that it is time that the dealer moves on to the appellate authority which is also an authority which can go into facts including examination of books of accounts. Writ Petitions are dismissed.

Issues Involved:
1. Validity and service of pre-revisional notices dated 03.09.2021.
2. Adequacy of opportunity provided to the petitioner to respond.
3. Non-consideration of the petitioner’s objections dated 27.08.2021.
4. Availability of an alternate remedy by way of appeal under Section 51 of the TN VAT Act.

Detailed Analysis:

1. Validity and Service of Pre-revisional Notices Dated 03.09.2021:
The petitioner challenged the pre-revisional notices dated 03.09.2021 on the grounds that they were not served properly and that sufficient time was not granted to respond. However, the court noted that this issue had already been conclusively decided by a previous common order dated 28.10.2021 by a Division Bench, which dismissed the writ appeals challenging these notices. The court emphasized judicial discipline and stated that it could not revisit this matter as it had already been settled by a higher bench.

2. Adequacy of Opportunity Provided to the Petitioner to Respond:
The petitioner argued that adequate opportunity was not given to produce books of accounts and respond to the notices. The court examined the sequence of events and found that multiple opportunities were given to the petitioner to produce the required documents. The pre-revisional notices issued on 14.07.2021 were followed by several requests for extensions by the petitioner, and despite being granted time, the petitioner failed to produce the books of accounts. The court concluded that sufficient opportunity had been provided, and the petitioner’s failure to utilize this opportunity could not be grounds for further delay.

3. Non-consideration of the Petitioner’s Objections Dated 27.08.2021:
The petitioner contended that their objections dated 27.08.2021 were not considered in the impugned orders. The court reviewed the impugned orders and found that while the objections were referred to, they were not adequately addressed. However, the court held that the correctness of the conclusions in the impugned orders should be tested in an appeal under Section 51 of the TN VAT Act, as the matter involved factual determinations that could be better addressed by the appellate authority.

4. Availability of an Alternate Remedy by Way of Appeal Under Section 51 of the TN VAT Act:
The court highlighted the principle that the availability of an alternate remedy, especially in fiscal matters, should be applied with utmost rigor. The court cited several Supreme Court judgments emphasizing that writ jurisdiction should not be used to bypass statutory appeal mechanisms unless exceptional circumstances exist, such as a breach of fundamental rights, violation of natural justice principles, excess of jurisdiction, or a challenge to the vires of the statute. The court found that none of these exceptions were applicable in the present case. The court reiterated that the petitioner had an effective and efficacious alternate remedy by way of an appeal under Section 51 of the TN VAT Act and that this route should be pursued.

Conclusion:
The court dismissed the writ petitions, emphasizing that the petitioner should pursue the alternate remedy of filing statutory appeals under Section 51 of the TN VAT Act. The court also noted that this was the third round of litigation at the first tier of tax assessment and that it was time for the petitioner to move on to the appellate authority, which could examine the books of accounts and other factual matters in detail. The court preserved the petitioner’s right to appeal, subject to the conditions of limitation and pre-deposit. Consequently, the writ miscellaneous petitions were also dismissed, with no order as to costs.

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