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TMI Blog2021 (10) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... - MADRAS HIGH COURT] . This Court is informed that this order has not been reported in any law journal. Therefore, this Court deems it appropriate to give case number and date of order for the benefit of all concerned. In the present case, there is no disputation or disagreement that the writ petitioner has been given an opportunity of personal hearing vide communication dated 11.02.2021, but the writ petitioner did not respond/avail the same. Therefore, the only grievance of the writ petitioner is, mismatch ought to have been examined by the Assessing Officer though the writ petitioner has not responded. However, learned Revenue counsel points out that it would have been examined if the dealer/writ petitioner had responded - There is no disputation or disagreement before this Court that alternate remedy against impugned orders is available to writ petitioner-dealer by way of statutory appeal under Section 51 of TNVAT Act. The campaign against impugned orders in writ jurisdiction in the captioned main writ petitions fail. However, it is made clear that it is open to the writ petitioner to avail alternate remedy under Section 51 of TNVAT Act, if the writ petitioner chooses to do so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 thereat came to be disposed of by a Hon'ble Single Judge in and by a common order dated 15.03.2018. 4. Adverting to aforementioned common order in earlier round of litigation and more particularly paragraph Nos.3 and 5 thereat, learned counsel submitted that this is a case of mismatch and if the dealer at the far end had not paid the tax, the writ petitioner cannot be penalized for the same. According to learned counsel for writ petitioner, the impugned orders are not in accordance with directions given by this Court in the aforementioned previous common order, more particularly, paragraph No.3 thereat wherein paragraph Nos.56 to 58 of another order made in W.P.No.105 of 2016 etc., dated 01.03.2017 have been extracted and reproduced. To be noted, this W.P.No.105 of 2016 etc., has now come to stay as what is known as JKM Graphics Solutions principle in litigation parlance. However, in the case on hand, notwithstanding very many averments and several grounds raised in writ affidavit, the lone grievance projected by learned counsel for writ petitioner in the hearing is, this being a case of alleged mismatch, writ petitioner cannot be penalized if the dealer at the far end h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard made by this Court in aforementioned previous common order dated 15.03.2018. 8. This Court now considers the rival submissions or in other words, this Court now embarks upon the exercise of discussion, dispositive reasoning and arriving at a conclusion. 9. At the outset, this Court is clear in its mind that personal hearing is not statutorily imperative for a legal drill i.e., assessment of escaped turnover/wrong availment of 'Input Tax Credit' ['ITC']. This is owing to the language in which common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act is couched. Common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act reads 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 turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. This Court observed that the expression used in sub-section (4) of Section 22 of TNVAT Act is 'a reasonable opportunity of being heard'. This is distinguishable from the expression 'reasonable opportunity to show cause' and it was on this basis that this Court has held that personal hearing is not statutorily imperative qua a legal drill under Section 27 of TNVAT Act. However, it is not necessary to dilate or elaborate further on this facet of the case on hand, as this Court has considered it appropriate to direct the respondent to give personal hearing and personal hearing has also been given. To be noted, even in State Bank of India officers case law, this Court has made it clear that if the Assessing Authority considers it necessary to hold a personal hearing, it is well open to the Authority to hold a personal hearing if it appears necessary owing to the nature of the issue raised and therefore, personal hearing for revision of assessments under Section 27(1) and/or 27(2) is optional depending on the nature of the issues involved, but it is not statutorily imperative. It is not necessary to elaborate any further on this facet of the matter. 12. Reverting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.' (Underlining made by this Court to supply emphasis and highlight) 15. Satyawati Tandon principle was reiterated by Hon'ble Supreme Court in K.C.Mathew case. Relevant paragraph in K.C.Mathew case is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court i.e., a three member Bench of Hon'ble Supreme Court speaking through Hon'ble Justice Dr.Dhananjaya Y Chandrachud reiterated this alternate remedy rule and held that writ jurisdiction can be exercised only if any of the exceptions arise, exceptions have also been adumbrated and all these are captured in paragraph Nos.11 and 12 of Commercial Steel Limited case which read as follows: '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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