2021 (10) TMI 318 - HC - VAT and Sales Tax

Works contract - deemed assessment under Section 22(2) of TNVAT Act - dealer obtained what is known as 'S Certificate' - non-filing of evidence for completion of work executed - request for revision under Section 22(6)(a) of TNVAT Act, but this was declined on the ground that the order was not made under Section 22(4) - HELD THAT - This Court reminds itself of the most recent judgment of Hon'ble Supreme Court din THE ASSISTANT COMMISSIONER OF STATE TAX AND OTHERS VERSUS M/S COMMERCIAL STEEL LIMITED 2021 (9) TMI 480 - SUPREME COURT rendered by a Hon'ble three member Bench and penned by Hon'ble Dr Dhananjaya Y Chandrachud. Dealing with alternate remedy in fiscal statute, Hon'ble Supreme Court neatly and nicely culled out the exceptions to the alternate remedy rule qua fiscal statute matters and held that only in cases where exceptions are attracted it would be justified to exercise writ jurisdiction. Impugned order is assailed on points predicated on mixed blend of facts and law which at best qualify as grounds of appeal and fail to pass muster qua being persuasive enough for exercise of writ jurisdiction on the teeth of alternate remedy in fiscal law Statutes. To be noted, the points raised in having assailing impugned order (notwithstanding very many averments in writ affidavit) have been captured and set out - it is deemed appropriate to not to dilate further on this, more so as the exceptions as culled out by Hon'ble Supreme Court have been reiterated and are reproduced supra. Therefore, this is a fit case to relegate the writ petitioner to the alternate remedy of statutory appeal under Section 51 of TNVAT Act. Petition dismisssed.

Summary

Issues Involved:
1. Validity of the impugned order dated 19.07.2021.
2. Adequacy of the bank statement provided by the petitioner.
3. Applicability of Section 13(1)(a) of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act).
4. Availability and necessity of alternate remedy under Section 51 of the TNVAT Act.

Issue-wise Detailed Analysis:

1. Validity of the Impugned Order:
The petitioner challenged the impugned order dated 19.07.2021, which pertains to re-assessment under the TNVAT Act for the Assessment Year 2015-16. The impugned order did not specify the provision of law under which it was issued. The Revenue counsel clarified that the order was made under Section 27 of the TNVAT Act. The petitioner argued that the order was in contravention of Section 13(1)(a) of the TNVAT Act as there was no transfer of property.

2. Adequacy of the Bank Statement:
The petitioner contended that the bank statement provided was not fully considered by the respondent. The Revenue counsel argued that the objections and the bank statement were carefully considered, as demonstrated on pages 4 and 5 of the impugned order. The court noted that this issue pertains to the merits of the matter, which is more suitable for an appeal rather than a writ petition.

3. Applicability of Section 13(1)(a) of the TNVAT Act:
The petitioner argued that there was no transfer of property, and thus, the impugned order violated Section 13(1)(a) of the TNVAT Act. The court observed that this argument also pertains to the merits of the case, which should be addressed in an appeal under Section 51 of the TNVAT Act.

4. Availability and Necessity of Alternate Remedy:
The court emphasized the availability of a statutory appeal under Section 51 of the TNVAT Act. It cited various precedents, including the Dunlop India case, Satyawati Tondon case, and K.C. Mathew case, to highlight that the alternate remedy rule is applied with utmost rigor in fiscal statutes. The court reiterated that the existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition but should be entertained only in exceptional circumstances such as a breach of fundamental rights, violation of natural justice, excess of jurisdiction, or challenge to the vires of the statute. In this case, none of these exceptions were established.

The court concluded that the issues raised by the petitioner were more appropriate for an appeal rather than a writ petition. It dismissed the writ petition, preserving the petitioner's right to file a statutory appeal under Section 51 of the TNVAT Act. The petitioner was also given the option to seek exclusion of time spent in the writ petition for the purpose of limitation under Section 14 of the Limitation Act.

Conclusion:
The writ petition was dismissed, and the petitioner was directed to pursue the alternate remedy of a statutory appeal under Section 51 of the TNVAT Act. The court maintained that the dismissal was without prejudice to the petitioner's right to appeal and seek exclusion of time spent in the writ petition for limitation purposes.