2021 (10) TMI 132 - HC - VAT and Sales Tax

Maintainability of petition - availability of alternative remedy of appeal - Validity of assessment order - proper personal hearing has not been given to the writ petitioner - principles of natural justice - HELD THAT - The alternate remedy would certainly apply to the case on hand and the writ petitioner may very well avail alternate remedy under Section 51 of TNVAT Act, if the writ petitioner chooses to file a statutory appeal. In other words, grounds are not good enough to compel this Court to persuade itself to exercise writ jurisdiction on the teeth of alternate remedy in a fiscal law Statute. Learned Revenue counsel pointed out that personal hearing has been given to the writ petitioner and therefore, it cannot be gainsaid that the provision only requires reasonable opportunity to show cause. The captioned Writ Petition fails and the same is dismissed.

Issues Involved:
1. Proper personal hearing not given.
2. Discrepancy in sales turnover figures.
3. Availability of alternate remedy under Section 51 of TNVAT Act.
4. Applicability of alternate remedy rule in fiscal statutes.

Issue-wise Detailed Analysis:

1. Proper Personal Hearing Not Given:
The petitioner argued that a proper personal hearing was not provided. The petitioner responded to a notice dated 28.06.2017, requesting 15 days to file detailed objections. Despite this, the petitioner did appear before the respondent and furnished books of accounts. The court noted that the Assessing Authority had given a reasonable opportunity to show cause, and the issue of proper personal hearing was addressed affirmatively.

2. Discrepancy in Sales Turnover Figures:
The petitioner highlighted a discrepancy between the sales turnover figures mentioned in the notice for personal hearing (?2.22 crores) and the impugned order (?18.30 Lakhs). The court acknowledged this discrepancy but emphasized that it is a ground of appeal rather than a reason to bypass statutory procedures.

3. Availability of Alternate Remedy Under Section 51 of TNVAT Act:
The court pointed out that the petitioner has an alternate remedy available under Section 51 of the TNVAT Act. This section allows for an appeal to the Appellate Deputy Commissioner within thirty days from the date of the order. The court highlighted the procedural aspects of this appeal, including the requirement for payment of tax admitted by the appellant and a portion of the disputed tax.

4. Applicability of Alternate Remedy Rule in Fiscal Statutes:
Citing several precedents, the court reiterated that the rule of alternate remedy is discretionary but applies with utmost rigor in fiscal statutes. The court referenced the Dunlop India, Satyawati Tandon, and K.C. Mathew cases, emphasizing that Article 226 should not be used to circumvent statutory procedures unless exceptional circumstances such as breach of fundamental rights or violation of natural justice are present. The court found that none of these exceptions applied in the present case.

Conclusion:
The court dismissed the writ petition, emphasizing that the petitioner should pursue the alternate remedy under Section 51 of the TNVAT Act. The court preserved the petitioner's right to file a statutory appeal and concluded that the grounds presented were insufficient to invoke writ jurisdiction in the face of an available alternate remedy in a fiscal statute. The connected miscellaneous petition was also dismissed, and no order as to costs was made.

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