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TMI Blog2008 (9) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 - RAVIRAJA PANDIAN K. AND JANARTHANA RAJA P.P.S. , JJ. The judgment of the court was delivered by K. RAVIRAJA PANDIAN J. This appeal is filed by the assessee against the order of the writ court dated June 26, 2008 made in Writ Petition No. 2392 of 2008(1), which was a common order passed in three writ petitions, the other two being Writ Petition Nos. 2393 and 13457 of 2008 See Sujana Universal Industries Ltd. v. Deputy Commercial Tax Officer [2009] 23 VST 106 (Mad)., in respect of the same assessee for three assessment years. The assessment year relating to this appeal is 2004-05. In Writ Petition No. 2392 of 2008(1), the appellant herein sought for the relief of certiorari to quash the order of TNGST assessment dated December 7, 2007 for the assessment year 2004-05. For the said assessment year, the assessing officer determined the taxable turnover at Rs. 2,34,29,59,494 and levied tax in a sum of Rs. 9,39,97,474 and surcharge of Rs. 20,931 and additional sales tax in a sum of Rs. 87,217. Apart from that penalty in a sum of Rs. 14,09,13,503 was also levied. Aggrieved by the assessment order, the appellant filed Writ Petition No. 2392 of 2008(1) for quashing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the three registered dealers who have themselves claimed the transaction as second sales. Hence, the order has to be set aside by this court with liberty to the assessing officer to redo the assessment in accordance with the statutory provisions. He further contended that as the appellant was also doing business at Andhra Pradesh, the inter-State investigation cell of the Tamil Nadu enquired about the genuineness of the appellant from its counterpart at Andhra Pradesh and found that they are genuine dealers. When the genuineness has not been disputed, the assessment made by imposing tax on the declared goods purchased from three registered dealers as a first sale and imposition of 150 per cent penalty is not only without jurisdiction but also palpably arbitrary. On the other hand, the learned Additional Advocate-General argued for the respondent that all these grounds now taken in the appeal and before the writ court could very well be agitated in the statutory appeal provided under the statute. When an efficacious and effective alternative remedy is available, and when a disputed question of fact is involved as to the genuineness of the purchasers, this court should not inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, it is well-settled, will issue appropriate orders or directions to prevent such consequences. In yet another Constitution Bench decision in the case of A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506, the apex court has held as follows: 9...We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this court but it is sufficient to refer to two cases: In Union of India v. T.R. Varma [1958] SCR 499 at pp. 503-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari.' In the result this court held that the existence of other legal remedies was not per se a bar to the issue of a writ of certiorari and that the court was not bound to relegate the petitioner to the other legal remedies available to him. 10.. The passages in the judgments of this court that we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the court should act, having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and that in a matter which is thus preeminently one of discretion, it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this court has also held in Chandra Bhan Gosain v. State of Orissa [1963] 14 STC 766 (SC); [1963] 2 SCR 879 that even when an alternative remedy has been availed of by a party but not pursued, the party could prosecute proceedings under article 226 for the same relief. This court has also held that when a party has already moved the High Court under article 226 and failed to obtain relief and then moved an application under article 32 before this court for the same relief, normally the court will not entertain the application under article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this court has, in a suitable case, entertained the application under article 32 (Tilokchand Motichand v. H.B. Munshi, Commissioner of Sales Tax, Bombay [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vember 26, 2007. In this notice, the reasons stated was that the enforcement wing officers inspected the place of business premises, verified the purchase bills, sales bills and found them to be correct. However, they entertained a doubt that the purchases were effected by the assessee from Nungambakkam and the assessee did not possess any godown facility to unload the goods. In addition to that, the other reason stated was that the selling dealers, whose details have been furnished by the assessee are found to be O case assessees, in the sense that there is no tax liability from them and treated as bill traders. On the abovesaid reasoning, the assessing officer proposed to disallow the second-sale exemption. The appellant filed their objections. On consideration of the objections, the assessment has been framed rejecting the claim of exemption by reproducing the reasons stated in the three notices and on the additional ground that the assessee has not discharged its initial burden as per section 10 of the TNGST Act. On that basis, the assessment order, which is impugned in the writ petition, has been passed on December 7, 2007 for the assessment year 2004-05. On a perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 2004-05 has been completed by the assessing officer on March 30, 2006 determining the total turnover at Rs. 1,05,54,02,466.36. Here again, the assessing officer, after checking the accounts, determined that the assessee is entitled to exemption for the sale of CTD bars, M.S. round and iron and steel on the ground that the goods have already suffered tax at the earlier stage. It is true that as per section 10 of the TNGST Act, it is for the assessee to initially discharge the burden that the goods has been subjected to tax at an earlier stage. The initial burden could be discharged by production of sale bill, and other information, such as registration certificate number under TNGST Act, etc., of the selling dealer. Thereafter, it is for the Department to verify the accounts of the selling dealers to find out the correctness. Here in this case, in addition to the production of sale/purchase bills of the goods and other documentary evidence about the selling dealers, the assessment orders passed against the three registered dealers have also been placed before the writ court. The entire turnover of the selling dealers of the appellant had been given exemption w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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