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TMI Blog2019 (8) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner banking institution at Tuticorin for the financial year 2011-12 to 2015-16 and a demand was raised for Rs. 1,20,27,688/-. The writ petitioner also paid VAT demand on 30.03.2017. Thereafter, a notice was issued under Section 82 of the Act for the assessment year 2012-13, calling for information and details as trading accounts and other particulars including sale of repossessed vehicles, sale of gold coins and sale of moving assets etc. The writ petitioner requested for time and they finally submitted all relevant details. The respondent / Assistant Commissioner, CT-II assessed their liability for VAT payment for the relevant year at Rs. 13,36,586/- and thereafter, the writ petitioner was issued with pre-assessment notice on 06.02.2018 under the provisions of Section 22(4) of the Act for the period from 2007-08 to 2016-17. The notice proposed various additions to taxable turnover of the writ petitioner. The pre-assessment notice dated 06.02.2018 had been proposed, rejecting the turnover disclosed by the writ petitioner and assessed the writ petitioner under Section 22(4) of the Act. 4. The learned counsel appearing on behalf of the writ petitioner also states that the turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of principles of natural justice as well as jurisdiction can be raised before the appellate authority. The appellate authorities, who are all exercising the quasi judicial powers, are empowered to adjudicate all such legal issues and decide the matters on merits and in accordance with law. 9. This being the statutory powers conferred on such appellate authorities, the High Court need not undermine the institutions and its powers conferred under the Act itself. All institutions created under the statutes are to be respected. Those institutions must be allowed to exercise their powers in the manner prescribed under law. In the event of bypassing the alternative remedy, the High Court would not be benefited from considering the findings of facts and the original issues as well as the disputed issues. The High Court under Article 226 of Constitution of India cannot adjudicate certain disputed issues, facts and various other circumstances, arising on account of intricacies involved in tax matters. However, all such intricacies with reference to all the original files as well as the evidences available can only by adjudicated effectively by the authorities competent and thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute became an empty formality and the High Courts also should see that the provisions of appeal contemplated under the statutes are implemented in its real spirit and in accordance with the procedures contemplated under the rules constituted thereon. While entertaining a writ petition as narrated by the Apex Court, the provision of efficacious alternative remedy under the statute also to be considered. If the writ petitions are entertained in a routine manner, by not allowing the competent Appellate authority to exercise their powers under the provisions of the statute, then this Court is of an opinion that the power of judicial review has not exercised in a proper manner. Thus, it is necessary for this Court to elaborate the legal principle settled in respect of the separation of powers under the Constitution of India. 1.Madras Bar Association vs. Union of India (UOI)(25.09.2014-SC): MANU/SC/0875/2014 If the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emarcation, without drawing formal lines between the three organs- legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of power, the separation of power between legislature, executive and judiciary is not different from the constitutions of the countries which contain express provision for separation of powers. (ii) Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India. (iii) Separation of powers between three organs -legislature, executive and judiciary--is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality Under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality Under Article 14 of the Constitution. (iv) The superior judiciary (High Courts and Supreme Court) is empowered by the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt cannot entertain the writ petitions in a routine manner by waiving the remedy of appeal provided under the statute. 21.Now, let us look into the legal principles settled by the Apex Court for exhausting the efficacious alternative remedy provided under the statute. 22.When an effective alternative remedy is available, a writ petition cannot be maintained. 1. In City and Industrial Development Corporation v. DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168, this Court had observed that: The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 2. KanaiyalalLalchand Sachdev and Ors. vs. State of Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) SCC 83. The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere with the same. The Supreme Court agreed to the arguments and held the same also noted that the writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. 5. State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. reported at AIR 2005 SC 3856, the Supreme Court explained the rule of 'alternate remedy' in the following terms Considering the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on.' 12. Yet another aspect is to be considered by this Court in such circumstances, which is also an important factor. Mostly, assesses are approaching the High Court under Article 226 of Constitution of India, directly without exhausting the appeal remedy available, in view of the fact that they have to deposit some amount in the event of preferring an appeal. In the present case, 25% of the assessment amount is to be deposited for the purpose of entertaining an appeal. In order to avoid such deposits, sometimes the Writ Petitions are filed. The ground raised is that principles of natural justice has been violated. Under the guise of these legal grounds alone, the Writ Petition cannot be entertained and the aggrieved persons are bypassing the appeal remedy in order to avoid the deposit of 25% of the assessment amount before the appellate authority for the purpose of entertaining an appeal. 13. The learned counsel appearing on behalf of the writ petitioner states that the writ petitioner has not avoided these aspects. However, the auditor's certificate was not considered by the competent authorities which amounts to negligence. However, non-consideration of the auditor&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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