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TMI Blog2021 (9) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... extraordinary jurisdiction of this Court - matters are remitted to the Assessing Officer and the Assessing Officer is directed to issue notice to the Appellant to appear in-person and during their personal appearance, the Appellant is directed to submit a further reply, clearly specifying as to what are all documents and details they would require - Petition not maintainable and is dismissed - appeal allowed by way of remand. - WA.Nos. 2222, 2226, 2229 and 2242 of 2021 - - - Dated:- 8-9-2021 - Honourable Mr.Justice T.S.Sivagnanam And Honourable Mr.Justice Sathi Kumar Sukumara Kurup For the Appellant : Mr. P.Rajkumar (for all Wps) For the Respondent : Mr. M.Venkateswaran (for all Wps) Government Advocate COMMON JUDGMENT T.S.SIVAGNANAM, J. These Appeals have been filed by the Writ Petitioner challenging the common order in W.P. Nos. 9286 to 9289 of 2014 and 18022 to 18025 of 2016 dated 15.06.2021. 2. The Writ Petitions were filed challenging the assessment orders passed by the Respondent under the provisions of the Tamilnadu Value Added Tax Act, 2006 [hereinafter referred to as 'the TNVAT' for short] dated 26.02.2014, 26.02.2014, 27.02.2014 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of this Court in Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited , the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law. However, certain exceptions to this rule of alternate remedy include where, the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of the fundamental principles of judicial procedure; or has resorted to invoke provisions, which are repealed; or where an order has been passed in violation of the principles of natural justice. Applying this formulation, the High Court noted that the appellant has an alternate remedy available under the GST Act and thus, the petition was not maintainable. 26. In this background, it becomes necessary for this Court, to dwell on the rule of alternate remedy and its judicial exposition. In Whirlpool Corporation v. Registrar of Trademarks, Mumbai , a two judge Bench of this Court after reviewing the case law on this point, noted: 14. The power to issue prerogative writs un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pn. v. Registrar of Trade Marks [(1998) 8 SCC 1].) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. The above principles of law laid down by the Hon'ble Supreme Court will guide us to take a decision in these appeals. 5. The Appellant is a registered dealer on the file of the Respondent under the provisions of the TNVAT Act and the Central Sales Tax (CST) Act, 1956. The assessment for the years under consideration were initially completed. The place of business of the Appellant was inspected by the Enforcement Wing Officials on 16.08.2012. During which, certain defects were alleged to have been found. On the basis of the alleged defects, which were found during such inspection, the Assessing Officer issued notices dated 06.11.2013 alleging that the Appellant has wrongly availed Input Tax Credit ('ITC' for short) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made any verification of the place of business of the above dealer after the TIN Number was issued, as per the guidelines issued by the Commissioner of Commercial Taxes. 3. In case, any verification has been made after issues of Registration, to find out the genuineness of the registration cancelled dealer, a Xerox copy of the verification report of the official who verified, may please furnished. 4. Whether the registration cancelled dealer has filed returns, as required under Sec 21 of TNVAT Act from the date of issue of Registration till the date of his cancellation of Registration. 5. In case, the registration cancelled dealer has not filed any returns both under TNVAT Act / CST Act, what action the Assessing Authority, has taken to obtain the returns or to make a best judgment Assessment. 6. Xerox copy of notices, if any issued to the registration cancelled dealer, to file his returns, wherever, the dealer fail to file returns. 7. The tax paid and ITC availed as per returns filed by the registration cancelled dealer may please be furnished separately, year wise and month wise, in the following form. Month and Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. Therefore, the Assessing Authority should make an Assessment to collect the taxes, what they have collected from us on sale of the goods. These details are required along with Xerox copy of the orders passed by the Assessing Authority, bringing the taxes involved on the sale invoices, in to the tax net. 16.A Xerox copy of the application for registration in Form-A filed before the Assessing Authority for registration of the business. 17.The details of persons introduced to open Bank account by the registration cancelled dealer, may please be furnished with their address. 18.A Xerox copy of rental agreement filed by registration cancelled dealer before the Registering Authority may please given to me at my cost. 19.A Xerox copy of statement recorded from registration cancelled dealer either at the time of giving registration or at the time of verification of the place of business may please be given to me at my cost. 20.Xerox copy of address proof furnished by registration cancelled dealer, in the registration document may please be given to me at my cost. 21.Details of Bank Account of registration cancelled dealer and also the Xerox copy of the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises of the Appellant on 16.08.2012, have taken away all the books for checking and returned the same on 24.08.2012 and the photo-stat copies of the list of books taken by them was attached for the ready reference of the Assessing Officer and therefore, stated that the question of producing books once over and again does not arise. 11. With regard to the non-maintaining of the Stock records as per the provisions of the TNVAT Act, the Appellant stated that they have already paid the compounding fee, and on the very same ground, the Appellant cannot be penalised for the second time. The Appellant specifically sought for an opportunity of personal hearing before passing the order to prove that the transactions are genuine. 12. The Appellant case is that the said objections / reply dated 06.12.2013 was submitted in the office of the Respondent on 09.12.2013 and to that effect, an acknowledgement was given in the letter delivery book. The Assessing Officer by orders dated 26.02.2014, 26.02.2014, 27.02.2014 and 27.02.2014 has completed the assessment. 13. Among other things, the Assessing Officer has held that no objection was filed by the Appellant to the notice dated 03.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant entitlement to seek any of or all of 23 details and documents, it would have been a different matter? 17. However, the Respondent has virtually ignored the reply dated 18.11.2013, wherein the Appellant, apart from giving its preliminary objections for the revision of assessment, has also sought for certain details and documents. That apart, there has been a specific request made by the Appellant in the representation 18.11.2013 to grant an opportunity of personal hearing. This has also been brushed aside, while issuing the second notice dated 03.12.2013. That apart, in the Assessment orders the Assessing Officer has stated that the Appellant has not furnished any reply to the second notice, whereas it has been admitted in the Counter-affidavit that the reply / objections dated 06.12.2013 has been received. 18. Therefore, we are of the clear view that there have been gross violation of principles of natural justice, which would justify our stand that the Appellant is entitled to invoke the extraordinary jurisdiction of this Court and consequently, Writ Petitions are held to be maintainable. 19. For all the above reasons, we are inclined to interfere the common ..... X X X X Extracts X X X X X X X X Extracts X X X X
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