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TMI Blog2016 (7) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... t Appeal No. 258 of 2016, CMP No. 4359 of 2016 - - - Dated:- 20-6-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr.P.Rajkumar For the Respondents : Mr.Kanmani Annamalai JUDGMENT ( Judgment of the Court was delivered by D. Krishnakumar, J ) This Writ Appeal has been filed against the order dated 23.2.2016 passed in W.P.No.6431 of 2016, which was filed challenging the impugned proceedings of the first respondent in TIN : 33531080477/2011-2012 and seeking quash of the order dated 18.1.2016 as contrary to the provisions of the TNVAT Act and further, to forbear the first respondent from passing a revised Assessment Order for the Assessment year 2011-2012 under the TNVAT Act based on the directions given by the second and third respondents. 2. The appellant , M/s. HIL Ltd., are dealers of fly ash bricks and asbestos sheets, etc., doing business at Red Hills in Chennai, and they have reported a total and taxable turnover of of ₹ 57,07,41,717 and ₹ 56,95,31,912 respectively claiming an exemption of ₹ 12,09,805/- in their monthly return filed in Form I under the Tamil Nadu Value Added Tax Act for the year 2011-12 before the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing influenced by the report or direction of his higher officials or the enforcement wing officials, without applying his independent mind, made the revised assessment and passed the impugned order. Further, it is contended that the objection of the appellant was not considered and the order of the first respondent is a non-speaking and cryptic order. By relying upon the decision of this High Court, the appellant/writ petitioner challenging the impugned proceedings submitted that the decision of the High Court is binding on the authority. 6. The contention of the appellant/writ petitioner was disputed by the counsel for the department and contended that the same can be decided only by the appellate authority. Therefore, the Writ Petition filed by the appellant/writ petitioner is not maintainable under Article 226 of the Constitution of India. 7. Considering the rival contentions of the parties, by order dated 23.2.2016 in W.P.No.6431 of 2016, the Writ Court dismissed the Writ Petition with an observation that it is open to the petitioner to challenge the impugned order before the appellate authority. 8. Aggrieved by the aforesaid order, the appellant has preferred the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in [2015] 79 VST 137(Mad) (xiv) W.A.Nos.1191 and 1192 of 2008 dated 23.10.2008. (xv) W.A.Nos.521 and 522 of 2013, dated 25.3.2013. 10. In the light of the above decisions, the appellant prayed that the Writ Petition is maintainable without exhausting the alternative remedy before the appellate authority. Therefore, the Writ Appeal has to be allowed granting the relief as prayed in the Writ Petition. 11. Per contra, the learned Additional Government Pleader, Mr.Kanmani Annamalai, has objected the contention of the appellant by stating that the Assessing Authority has issued a notice in TIN No.33531080477/2011-12 dated 30.07.2015 calling for objections and the objection was submitted by the appellant on 2.9.2015 and thereafter, opportunity of personal hearing was granted to the appellant. It is an admitted fact that the opportunity was given to the appellant and submitted their objections as well for personal hearing. Further, it is submitted that appellant was not represented on the hearing date before the Assessing Authority. After considering the objections of the appellant/writ petitioner, the Assessing Authority passed the detailed impugned order by rejecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed with no finding on the objections submitted by the assessee. Here, the original authority has passed the order and reasons has been given for rejecting the same found in the impugned order. (iv) Advantage Computers India Pvt.Ltd., Vs. Commercial Tax Officer, Chennai, in W.P.No.2020 of 2007 dated 20.1.2007, the Assessing Officer has violated the principles of natural justice and there was no independent application of mind. Insofar as the present case is concerned, there is no allegation for the violation of principles of natural justice. Personal hearing was offered and objections were considered in detail. (v) Amutha Metals vs. Commercial Tax Officer, Chennai, reported in [2007] 9 VST 478 (Mad), State of Tamil Nadu vs. A.N.S.Guptha and sons reported in [2011] 38 VST 45 (Mad), W.A.Nos.1191 and 1992 of 2008 dated 23.10.2008 and W.A.No.521 and 522 of 2013 dated 25.3.2013, assessment was made following the proposals by the enforcement wing. Objections filed by the assessee was not considered on the ground that assessee should have placed all facts before the Enforcement Officers. There is no independent application of mind by the Assessing Officer. As far as the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of natural justice was violated. Personal hearing was denied and records produced by the assessee refused to be admitted by the Assessing Officer. Insofar as the present case is concerned, there is no violation of principles of natural justice. Personal hearing was offered. Necessary documents were not submitted by the assessee before the authority concerned. (xi) In the case of Nokia Inda Pvt.Ltd. vs. Deputy Commissioner (CT)-IV reported in [2015] 79 VST 137(Mad), decision was on equal addition for probable omission given in Writ Petition. Writ Petition was held to be maintainable because principles of natural justice were violated. Jurisdiction of assessing officer was questioned and settled law was not followed by the Assessing Officer. Insofar as the present case is concerned, there is no allegation of violation of principles of natural justice and there is no issue raised pointing to the jurisdiction of the assessing officer. Whether judicial precedents were followed or not is a question to be decided by the appellate authority. 13. Heard Mr.P.Rajkumar learned counsel appearing for the appellant and Mr.Kanmani Annamalai, learned Additional Government Ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mical Industries ..... vs. Union of India Others reported in 1999 (113) ELT 17 SC : (2000) 10 SCC 13, the Hon'ble Supreme Court has held that there is no reason why the Writ Petition has been filed bypassing the alternative remedy which is provided under the statute. Therefore, the party must exhaust statutory remedy before resorting to the writ jurisdiction. (b) In C.A.Abraham, Uppoottil, Kottayam vs. The Income Tax Officer, Kottayam reported in 1961 AIR 609 : 1961 SCR (2) 765, the Hon'ble Supreme Court has held that the appellant could not be permitted to invoke the jurisdiction of High Court under Article 226 of the Constitution of India when he had adequate remedy open to him by way of appeal to the Tribunal. (c) In Punjab National Bank vs. O.C.Krishnan and others reported in 2001 Supp (1) SCR 466, the Hon'ble Supreme Court has held that the Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under section 20 and this last track procedure cannot be allowed to be derailed either by taking recourse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. (f) In the case of Commissioner of Income Tax and others vs. Chhabil Dass Agarwal reported in (2014) 1 Supreme Court Cases 603 following the proposition laid down in Thansingh Nathmal v. Superintendent of Taxes reported in AIR 1964 SC 1419 and as also in Titaghur Paper Mills Co.Ltd., v. State of Orissa reported in (1983) 2 SCC 433 and other similar judgments 15. .....that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machienry for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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