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TMI Blog2021 (6) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... w. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority, which is certainly not desirable - Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated. The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The points raised in this regard are statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart, in a writ petition, if such orders are passed with jurisdictional errors and q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For Respondent: Mr. V. Nanmaran (Government Advocate) ORDER The order dated 30.04.2015 challenged in this Writ Petition reveals that the registration of the writ petitioner was cancelled and the cancellation order earlier passed on 24.03.2014 was found to be in order and confirmed by the Assistant Commissioner (CT), Sriperumbudur Assessment Circle. However, the impugned order reveals in its introductory paragraph that an appeal before the Appellate Deputy Commissioner (CT), Chennai (South) may be filed within 30 days from the date of receipt of the order. Thus, the original authority in his impugned order dated 30.04.2015 has categorically stated that the petitioner is entitled for the statutory appeal/revision as the case may be, under the provisions of the Act and if he is aggrieved, he may prefer the same within the period contemplated. 2. The issue raised in this writ petition is that the Assessing Officer has erroneously applied the provisions of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as the TNVAT Act ) and passed the assessment order which resulted exercise of jurisdiction erroneously and thus, the petitioner is constrained to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with and the matter is to be decided on merits. 6. The learned counsel for the petitioner relied on certain judgments in support of their contentions regarding the appellate remedy by stating that the High Courts and the Supreme Court have dispensed with the appellate remedy in many cases and therefore, the benefit of the judgments are to be extended in favour of the writ petitioner in the present writ petition. 7. This Court is of the considered opinion that Section 51 of the TNVAT Act provides appeal to the Appellate Deputy Commissioner. The appeal provision contemplates procedures also. Sub-section (2) of Section 51 stipulates that the appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed. Sub-section (3) of Section 51 denotes that in disposing of an appeal, the Appellate Deputy Commissioner may, after giving the appellant a reasonable opportunity of being heard, and for the sufficient reasons to be recorded in writing (a) in the case of an order of assessment, (i) confirm, reduce, enhance or annul the assessment or the penalty or both; (ii) set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the power of judicial review under Article 226 of the Constitution of India. In other words, findings of the original authority as well as the appellate authority would be of greater assistance to the High Court for effective disposal of the writ petitions and for providing complete justice to the parties. In the event of dispensing with the appeal on frivolous grounds, the aggrieved persons are also deprived of their opportunity to adjudicate issues before the appellate authorities. Thus, it is not preferable to encourage by dispensing with the appellate remedy, which all are provided under the statute. 11. Power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinise the processes and the procedures adopted by the competent authorities for arriving a particular decision in accordance with law, but not the decision itself. Thus, the High Court cannot entertain an adjudicative process regarding the mixed question of fact and law with reference to the documents and evidences in original. High Court cannot resolve the disputed issues between the parties only based on the affidavits filed in the writ petitions. There is a possibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, 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 structure. (These cannot be catalogued but can only be illustrated): (1) The supremacy of the Constitution. (2) Republican and Democratic form of government and sovereignty of the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the Legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udiciary 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 Constitution to declare a law made by the legislature (Parliament and State legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious 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. Dosu Aardeshir Bhiwandiwala 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 and Ors. (07.02.2011 - SC) : MANU/SC/0103/2011 It is well settled that ordinarily relief Under Articles 226/227 of the Constitution of India is not available if an efficacious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfere 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, t he 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 jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs [Civil Appeal No.1827 of 2018, dated 09.03.2021] is concerned, as rightly pointed out by the learned Senior Standing Counsel appearing on behalf of the respondent, the matter went to the Hon'ble Apex Court by way of regular appeal and the Hon'ble Supreme Court of India, while adjudicating the final orders passed by the Appellate Tribunal, formed an opinion that the issuance of show cause notice itself was by an improper authority. Thus, by citing the said finding, the appellate remedy otherwise provided under the Statute cannot be dispensed with, and in the event of accepting the said contention, in all such cases, every litigant will approach the High Court by way of writ petition bypassing the appellate remedy, which is not desirable and cannot be accepted. As observed earlier, Institutional respect is of paramount importance. Even the point of jurisdiction, limitation, error apparent on the face of the record, are on merits and all are to be adjudicated before the appellate authority and the appellate authority, more specifically, the Appellate Tribunal or the Commissioner (Appeals), as the case may be, is empowered to adjudicate all such legal gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commit such jurisdictional errors in a routine manner. In these circumstances, review of such orders by the higher authorities are imminent to form an opinion that there is willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Liability and jurisdictional errors are distinct factors, and therefore, Courts are expected to provide an opportunity to the Department to decide the liability on merits and in accordance with law with reference to the provisions of the Act and Rules and guidelines issued by the Department. 17. Large number of writ petitions are filed without exhausting the statutory appeal remedies and High Court is also entertaining such writ petitions in a routine manner. Keeping such writ petitions pending for long time would cause prejudice to the interest of the assessee also. Thus, such statutory provisions regarding the appeal are to be decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise. However, the Courts are expected to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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