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TMI Blog2021 (10) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... g persuasive enough for exercise of writ jurisdiction on the teeth of alternate remedy in fiscal law Statutes. To be noted, the points raised in having assailing impugned order (notwithstanding very many averments in writ affidavit) have been captured and set out - it is deemed appropriate to not to dilate further on this, more so as the exceptions as culled out by Hon'ble Supreme Court have been reiterated and are reproduced supra. Therefore, this is a fit case to relegate the writ petitioner to the alternate remedy of statutory appeal under Section 51 of TNVAT Act. Petition dismisssed. - W.P.No.20285 of 2021 And W.M.P.No.21538 of 2021 - - - Dated:- 23-9-2021 - Honourable Mr.Justice M.Sundar For the Petitioner : Mr.G.Surya Narayanan For the Respondent : Ms.Amirta Dinakaran Government Advocate ORDER Captioned writ petition and writ miscellaneous petition therein are in the Admission Board. 2. In the captioned main writ petition an 'order dated 19.07.2021 bearing reference TIN:33563023419/2015-16' (hereinafter 'impugned order' for the sake of brevity and convenience) made by the sole respondent has been called in question. 3. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue counsel in response to the above submissions, made submissions, a summation of which is as follows: a) A perusal of the impugned order, more particularly Pages 4 and 5 thereat would demonstrate that the objections of the writ petitioner have been carefully considered and therefore, it cannot be gainsaid that the objections and the bank statement have not been considered; b) The second point turning on Section 13(1)(a) of TNVAT Act turns on merits of the matter and there is an appeal remedy available to the writ petitioner under Section 51 of TNVAT Act. 10. In response to the above, notwithstanding a pile of case laws, which have been circulated in a compilation captioned 'CITATIONS TYPED-SET', learned counsel pressed into service the celebrated Gannon Dunkerley Co. and Ors. Vs.State of Rajasthan and Ors. reported in (1993) 88 STC 204 (SC) for principles regarding deductions qua works contract. 11. This Court carefully considered the submissions made on either side. 12. There is no disputation or disagreement that the writ petitioner has an appeal remedy i.e., statutory appeal under Section 51 of TNVAT Act, which reads as follows: ' 51 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red under sub-section (1), the tax shall be paid in accordance with the order of assessment against which the appeal has been preferred: Provided that the [Appellate Deputy Commissioner] may, in his discretion, give such directions as he thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to his satisfaction, in such form and in such manner as may be prescribed: Provided further that the directions given under the first proviso shall stand vacated, if no order is passed under subsection (3) within a period of one hundred and eighty days of the issue of order under the said proviso. As rightly pointed by learned Revenue counsel the submission turn on merits and are more in the nature of grounds of appeal than grounds of attack in writ jurisdiction on the teeth of alternate remedy.' 13. This takes us to the alternate remedy concept. Alternate remedy qua writ jurisdiction under Section 226 of Constitution of India, has repeatedly been held to be not an absolute rule. While holding it is not an absolute rule i.e., a discretionary rule and a self-imposed restraint, Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions by themselves unless there are other attendant circumstances cannot become a ground for bypassing the alternate remedy. c) With regard to the ground that a case law was pressed into service before the first Appellate Authority i.e, first respondent and the same has not been considered, the same at best qualifies as a ground to be agitated in a regular statutory appeal. The reason is, this requires examination of records and it has to be seen whether the case law was actually pressed into service and whether it forms part of the records of the first Appellate Authority. It is ideal to leave these aspects to TNSTAT to examine the same in the absence of any other attendant circumstances. d) With regard to the judgment of Hon'ble Supreme Court in Steel Authority of India case, as rightly pointed out by learned State Counsel that it is clearly distinguishable on facts. e) To demonstrate that it is distinguishable on facts, two paragraphs are of relevance. They are paragraphs 6 and 11, which read as follows: '6. A few days thereafter, on April 19, 2006, the Assistant Commissioner disposed of the appeal filed dismissing the same and confirming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -company and the decisions of the different courts cited are not applicable in the present case, the same is not corrected. A perusal of aforesaid paragraphs 6 and 11 brings to light that in the aforesaid Steel Authority of India case, the assessee had availed the statutory remedy of approaching the State Tribunal and no orders were passed in the stay petition taken out in the State Tribunal, which was carried to High Court and the High Court disposal culminated in the proceedings of the Supreme Court, in which the aforesaid judgment was passed. In this case, it is a question of whether the writ petitioner should avail the alternate remedy of filing a regular statutory appeal to the State Tribunal. Furthermore, this Court is inclined to accept the submission of State Counsel that it is distinguishable on facts in the light of paragraph 11 as that was a case where in the considered view of Hon'ble Supreme Court there was complete non application of mind on the part of the first Appellate Authority. The Hon'ble Supreme Court has categorically held that it is no way to dispose of a statutory appeal. Such circumstances do not exist in the instant case. f) Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' (Underlining made by Court to supply emphasis and highligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: '11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was CA 5121/2021 7 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' 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.' 17. To be noted, the above are so well settled that it has come to stay as ' Whirlpool exception ' in litigation parlance. 18. From the narrative thus far and the grounds of attack qua impugned order, I am unable to persuade myself to believe that the captioned writ petition falls under any of the exceptions qua alternate remedy rule. Impugned order is assailed on points predicated on mixed blend of facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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