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TMI Blog2021 (10) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... d order pertains to reversal of input tax credit (ITC) under Section 19(4) of TNVAT Act. Learned State counsel, who accepts notice on behalf of the lone respondent, on instructions, submits that reversal of ITC no doubt is under Section 19(4) of TNVAT Act but the impugned order has been made under Section 27 of TNVAT Act. Learned counsel for writ petitioner points out that there is no mention about Section 27 of TNVAT Act in the impugned order. This is the reason why the opening remark was made saying this is yet another case where the provision of law has not been mentioned in the impugned order and that by itself has led to a sea of confusion in the case on hand. 6.Be that as it may, notwithstanding very many averments made and very many grounds raised in the writ affidavit, lone pivotal contention of the learned counsel for writ petitioner is that reversal of ITC should be in excess of 5% of tax or in other words, upto 5%, there cannot be reversal. 7.There is no disputation or disagreement that the writ petitioner was given an opportunity to show cause prior to the impugned order and the writ petitioner has shown cause. This is owing to notice dated 30.10.2018 issued by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessary to go into the same, is the contention of the learned counsel for writ petitioner. On the contrary, if the impugned order is under Section 27(2) of TNVAT Act, as contended by the learned Revenue counsel, at the highest, reasonable opportunity to show cause against such an order should have been given to the dealer going by the common proviso to sub-sections 1 and 2 of Section 27, which read as follows: 27. Assessment of escaped turnover and wrong availment of input tax credit. (1) (a) Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (3), at any time within a period of five years from the date of assessment order by the assessing authority, determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary. (b) Where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it is assessable, the assessing authority may, at any time within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is Honourable Supreme Court in a catena and series of judgments i.e., a long line of case laws commencing from Dunlop India case [Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and others reported in (1985) 1 SCC 260], Satyawati Tandon Case [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] and K.C.Mathew case [Authorized Officer, State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3 SCC 85], has held that when it comes to Revenue matters, the alternate remedy rule should be applied with utmost rigour. Relevant paragraph in Dunlop India case is paragraph 3 and relevant paragraph in K.C.Mathew case is paragraph 10, which read as follows: Paragraph 3 of Dunlop India case '3. ....... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue 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 this Court to supply emphasis and highlight) 13.To be noted, paragraph 10 of K.C.Mathew case captures paragraph 10 of Satyawati Tondon case law and therefore I am not extracting and reproducing relevant paragraphs from Satyawati Tondon case law separately. 14.Be that as it may, following the decisions in Dunlop, Satyawati Tondon and K.C. Mathew (cited supra), I have held that in revenue matters, alternate remedy rule has to be applied with utmost rigour. This Court took this view on alternate remedy vide orders dated 28.06.2019 made in W.P.No.17804 of 2019 [M/s.Sekar Exports Pvt. Ltd., Vs. The Appellate Deputy Commissioner and another]. This was carried in appeal vide an intra-court appeal in W.A.No.196 of 2020 and the writ appeal came to be dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it would at the highest qualify only as an error. To be noted, this Court is not expressing any view as it is relegating writ petitioner to alternate remedy of revision/appeal. Even if this argument is to be accepted, it would only qualify as an error and it may not qualify as excess of jurisdiction. To be noted, besides the aforesaid exceptions carved out by Hon'ble Supreme Court in Commercial Steel case penned by Hon'ble Dr.Dhananjaya Y.Chandrachud, the exceptions to alternate remedy rule are well settled vide Whirlpool principle [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1] and Harbanslal principle [Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd., and others reported in (2003) 2 SCC 107]. 17. To be noted, the above exceptions are so well settled and well entrenched in litigation circuit that it has come to stay as 'Whirlpool exception' in litigation parlance. 18.From the narrative that has been captured supra, it is very clear that none of the exceptions are attracted in the case on hand. 19.If the writ petitioner chooses to file appeal under Section 51 or revision under Section 54 as the case ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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