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TMI Blog2019 (7) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... s leads us to the inevitable sequitur that principle is to the effect that even though the Enforcement Wing Official's proposal is approved by Joint Commissioner, an authority much below the rank of Deputy Commissioner for that matter below the rank of even the Assistant Commissioner viz., a Commercial Tax Officer (CTO) would apply his mind independently and come to a conclusion by going through the proposal of Enforcement Wing Officials on one side and objections of the dealer on the other. Alternate remedy - HELD THAT:- It is not a rule of compulsion, but it is a rule of discretion. Though it is a rule of discretion, Hon'ble Supreme Court in Satyawati Tandon Case [United Bank of India Vs. Satyawati Tondon and others [2010 (7) TMI 829 - SUPREME COURT] has held that when it comes to matter pertain to Taxes, CESS, Revenue etc., the rule of alternate remedy has to be applied with utmost rigour - it is a fit case to relegate the writ petitioner to the alternate remedy of an appeal to the jurisdictional Deputy Commissioner or in other words, Appellate Deputy Commissioner having jurisdiction. If writ petitioner, chooses to avail the alternate remedy all the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 bearing Reference TIN 33663100382/2015-16 has been called in question. 7. The 'Revised Assessment Order dated 16.05.2019' which has been called in question in the first writ petition shall be referred to as 'first impugned order' and the 'Revised Assessment Order dated 22.05.2019' which has been called in question in the second writ petition shall be referred to as 'second impugned order'. Both these impugned orders shall collectively be referred to as 'impugned orders' for the sake of brevity, convenience and clarity. 8. There is no disputation or disagreement before this Court that both the impugned orders have been made under Section 22(4) of TNVAT Act, i.e., best judgment method. 9. Impugned orders are assailed by learned counsel for writ petitioner primarily on three grounds. To be noted, notwithstanding various averments in the affidavits filed in support of both these writ petitions and the grounds raised therein, the three points alluded to infra were projected and argued in the hearing. 10. First ground is that writ petitioner, who is a dealer under TNVAT Act, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the dealer is assessed to tax and is quantified by the Income Tax Officer in accordance with the provisions of that Act and the Tamil Nadu General Sales Tax Act, 1959 ordains the Assessing Authorities functioning thereunder to bring to tax sales as such either found in the books of accounts or agreed to be so by the assessee or otherwise proved to be so by circumstantial evidence. Thus, by analyzing the manner, in which, two statutes operate, the Hon'ble Division Bench held in favour of the Revenue stating that the assessee admitted in his sworn statement that the two sums representing the sales for the two assessment years in question represented unbilled cash sales. Hence, the retraction made to the sworn statement was held to be lacking any bona fide.' 13. Therefore, in the light of the aforesaid observation in Sharoff Syndicate judgment, this Court is of the considered view that the principle is to the effect that Income tax records are not completely forbidden. 14. This takes us to the last ground i.e., Narasus Roller Flour Mill's principle. 15. This Court had the benefit of perusing both the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Officer to find out precisely the turnover suppressed. He could only make an estimate of the suppressed turnover on the basis of the material before him. So long as the estimate made by him is not arbitrary and has nexus with facts discovered, the same cannot be questioned. In the very nature of things the estimate made may be an over-estimate or an underestimate. But that is no ground for interfering with his 'best-judgment'. It is true that the basis adopted by the officer should be relevant to the estimate made. The High Court was wrong in assuming that the assessing authority must have material before it to prove the exact turnover suppressed. If that is true, there is no question of 'best-judgment' assessment. The assessee cannot be permitted to take advantage of his own illegal acts. It was his duty to place all facts truthfully before the assessing authority. If he fails to do his duty, he cannot be allowed to call upon the assessing authority to prove conclusively what turnover, he had suppressed. That fact must be within his personal knowledge. Hence the burden of proving that fact is on him. No circumstance has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d orders, has come to the conclusion that it cannot be gainsaid by writ petitioner that Narasus Roller Flour Mill's principle has not been adhered to, as the respondent Assessing Officer has considered the proposals made by Enforcement Wing Officials, has also set out the objections of writ petitioner assessee and has returned findings. If there is any error in these findings returned, at best it can be canvassed by way of an appeal being a statutory appeal under Section 51 of TNVAT Act as the same turns heavily on facts. 18. With regard to appeal provision under Section 51 of TNVAT Act, learned counsel for writ petitioner raised an interesting argument. Learned counsel for writ petitioner submitted that the proposals made by Enforcement Wing Officials are approved by a Joint Commissioner and therefore, a Deputy Commissioner cannot be an Appellate Authority qua impugned orders. 19. This Court has carefully considered the submissions. This Court has also noticed that learned counsel for writ petitioner is pressing into service Narasus Roller Flour Mills case [ Narasus Roller Flour Mills Vs. Commercial Tax Officer (Enforcement W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in (2018) 3 SCC 85] . Relevant paragraph is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public ..... X X X X Extracts X X X X X X X X Extracts X X X X
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