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2021 (10) TMI 1074 - HC - VAT and Sales TaxAssessment of escaped turnover - wrong availment of Input Tax Credit (ITC) - Section 27 of TNVAT Act - HELD THAT - There is a statutory appeal provided under TNVAT Act as against the impugned order and this statutory appeal is available to writ petitioner under Section 51 of TNVAT Act. Therefore, there is an alternate remedy. There is nothing to demonstrate that alternate remedy is not efficacious. The second respondent has applied his mind and made the impugned order (on a demurer, erroneous may be as contended by writ petitioner) and therefore, it does not warrant interference in exercise of powers under Article 226 of Constitution of India on this facet also. As I am taking the view that this case does not warrant interference under Article 226 of Constitution of India, in the light of alternate remedy, I refrain from expressing any opinion or view on merits of the matter and traces or trappings of observations on merits which may appear to have been made in this order are for the limited purpose of disposal of captioned writ petition and therefore, the same should not come in the way of a Statutory appeal i.e., this order should not in any way either impede or serve as a impetus if the writ petitioner chooses to avail alternate remedy and statutory appeal under Section 51 of TNVAT Act. Petition dismissed.
Issues Involved:
1. Jurisdiction and Perversity of the Impugned Order. 2. Availability and Efficacy of Alternate Remedy. 3. Application of Legal Precedents and Exceptions to Alternate Remedy. Detailed Analysis: 1. Jurisdiction and Perversity of the Impugned Order: The petitioner challenged an order dated 30.07.2021 under Section 27 of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT), alleging that the order was perverse. The petitioner, a DTH service provider, argued that the charges collected were not taxable under TNVAT as they were not sale prices but service charges subject to service tax. The petitioner contended that the second respondent misinterpreted the nature of the charges despite having the correct legal provision and cited the Seema Ghosh case to support the claim of perversity. The court, however, found that the argument of misreading contract covenants or coming to incorrect conclusions are typical grounds for appeal, not for writ jurisdiction interference. 2. Availability and Efficacy of Alternate Remedy: The court emphasized the statutory appeal available under Section 51 of the TNVAT Act as an alternate remedy. It was noted that there was no evidence to demonstrate that this alternate remedy was not efficacious. The court referred to several precedents, including the Dunlop India case and the Satyawati Tandon case, which assert that alternate remedies should be exhausted before seeking writ jurisdiction, especially in fiscal matters. The court reiterated that Article 226 is not meant to bypass statutory procedures unless exceptional circumstances are present, none of which were demonstrated in this case. 3. Application of Legal Precedents and Exceptions to Alternate Remedy: The court discussed the exceptions to the alternate remedy rule as outlined in the Commercial Steel Limited case, which include breach of fundamental rights, violation of natural justice principles, excess of jurisdiction, or challenge to the vires of the statute. The court found that none of these exceptions applied to the present case. The Seema Ghosh case, cited by the petitioner, was deemed inapplicable as it pertained to labor law and not fiscal statutes. The court also referenced the Whirlpool and Harbanslal principles, which support the strict application of exceptions in fiscal matters. The court concluded that the petitioner’s grounds for challenging the impugned order were more suited for an appeal rather than writ jurisdiction. Conclusion: The court declined to interfere with the impugned order due to the availability of an alternate remedy under Section 51 of the TNVAT Act. The court emphasized that the petitioner should pursue the statutory appeal, and the appellate authority should consider the appeal on its merits without being influenced by the court’s observations. The writ petition and related miscellaneous petitions were dismissed, preserving the petitioner’s right to avail the alternate remedy.
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