9911796707
TMI Blog2008 (7) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the learned counsel for the petitioner-company and by the learned Additional Government Pleader are not considered and decided in this order, in any manner. - W.P. Nos. 13184, 13185 of 2008 - - - Dated:- 4-7-2008 - PAUL VASANTHAKUMAR , J. ORDER:- PAUL VASANTHAKUMAR J. By consent of the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader (Tax) appearing for the respondents, the writ petitions are taken up for final disposal even at the admission stage. Prayer in the writ petitions is to quash the order of the second respondent dated February 29, 2008 and direct the respondents to pass fresh orders of assessment by following circulars dated August 25, 1999 and April 20, 2001 by affording opportunity of personal hearing. The petitioner, a private limited company, is doing heavy civil contract works like infrastructure road construction for National Highways Authority of India, and is a registered dealer under the Tamil Nadu General Sales Tax Act, 1959. The petitioner is also doing quarry works. The second respondent called for accounts for the purpose of final assessment for the year 2003-04. The petitioner produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner submitted objection on November 28, 2007. However, revised assessment order dated February 29, 2008 was received by the petitioner on May 14, 2008 demanding a sum of Rs. 42,40,740 towards tax, surcharge, additional tax and penalty. The said order is challenged in this writ petition without resorting to file appeal before the Appellate Assistant Commissioner under section 31 of the TNGST Act, 1959. Heard the learned counsel appearing for the petitioner-company as well as the learned Additional Government Pleader appearing for the respondents. The learned counsel appearing for the petitioner-company submitted that even though appeal remedy before the Appellate Assistant Commissioner, is provided under the Act, the impugned orders of assessment having been passed in violation of principles of natural justice, the petitioner is entitled to challenge the assessment orders in these writ petitions. The learned Additional Government Pleader submitted that adequate opportunity was given to the petitioner and if the petitioner has got any document to prove its case the same can be produced before the appellate authority, who will be in a position to render a factua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition as held in the decision in Himmat Singh v. State of Haryana reported in [2006] 9 SCC 256. In yet another decision in Food Corporation of India v. Harmesh Chand reported in [2007] 7 MLJ 687 the Supreme Court held as follows: Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter. When appealable order is passed, particularly when the facts are in dispute, writ petition filed under article 226 of the Constitution of India without availing of the alternate remedy is not maintainable is the consistent view taken by the Supreme Court and by this court. (a) In the decision C.C.T., Orissa v. Indian Explosives Ltd. reported in [2008] 14 VST 1; AIR 2008 SCW 1815 the Supreme Court set aside the order passed in a tax matter and in paragraph 7 held thus: 7. The High Court seems to have completely lost sight of the parameters highlighted by this court in a large number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the prescribed authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute are in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to article 226 of the Constitution. But, then the court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. We ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition was entertained at all by this court. (c) Same is the view taken by different Division Benches of this court in (Sharda Industries v. Commercial Tax Officer, Chennai) W. A. No. 1555 to 1557 of 2007, dated December 10, 2007; (Srinivasa Trading Co. v. Deputy Commercial Tax Officer) W.A. Nos. 749 and 750 of 2006, dated June 22, 2006 and W.A. Nos. 590 and 591 of 2008 dated June 11, 2008 (Chopard Builders Ltd. v. Deputy Commercial Tax Officer, Coimbatore [2009] 22 VST 134 (Mad)). In W.A. Nos. 590 and 591 of 2008 the First Bench of this court by order dated June 11, 2008 (Chopard Builders Ltd. v. Deputy Commercial Tax Officer [2009] 22 VST 134 (Mad)) held as follows: 2. These writ appeals have been filed challenging an order passed by the learned single judge, dated September 17, 2007(1). Subject-matter of the challenge was an order passed by the assessing authority under the Tamil Nadu General Sales Tax Act, 1959. We need to consider the merits of the case, as in view of the admitted position against the order of the assessment officer, statutory appeal is provided. We just remind ourselves of the repeated directions given by the apex court that in the Revenue matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
