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TMI Blog2021 (11) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... Steel case, excess of jurisdiction i.e., 11(iii) is attracted but that is only with regard to penalty aspect of the impugned order i.e., paragraph 7 of the impugned order as Sri Ram Packages principle clearly forbids levy of penalty absent adoption of best judgment method - this is a fit case for relegating the writ petitioner to alternate remedy of statutory appeal under Section 31 (except penalty which is set aside) i.e., tax due portion of impugned order subject of course to pre deposit condition and limitation with regard to the tax due part of the impugned order, if the writ petitioner chooses to do so. Impugned order is partly set aside i.e., set aside with regard to penalty alone - writ petition is allowed with regard to the penalty levied in the impugned order and writ petition is dismissed with regard to the remaining portion of the impugned order - Petition allowed in part. - W.P.No.22074 of 2021 and WMP.No.23290 of 2021 - - - Dated:- 22-10-2021 - HONOURABLE Mr. JUSTICE M. SUNDAR For Petitioner : Mr. S. Ramanathan For Respondent: Ms. Amirta Dinakaran Government Advocate ORDER Captioned main writ petition has been filed assailing an 'order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel on both sides. 6. Responding to the aforementioned arguments of learned counsel for writ petitioner, learned Revenue counsel made submissions, a summation of which is as follows: (i) It cannot be gainsaid that Ashok Leyland principle has been given a go-by as the impugned order vide paragraph 5 (i) (b) and (c) has clearly returned a finding that sales invoices/proforma invoices for the assessment year (2000-2001) have been found and this is suppression. In this regard, learned Revenue counsel submitted that the respondent need not accept the submission of department representative as gospel truth as in this case the department representative appears to have represented that no direct purchase orders corresponding to 2000-2001 assessment year were recovered unlike other assessment years. (ii) The order dated 24.12.2019 made pertaining to another assessment year 2001-2002, is a case where no incriminating records were found during inspection and therefore, Ashok Leyland principle was followed. It was also pointed out that the incumbents are different and it is not the same officer as contended by learned counsel for writ petitioner. (iii)Regarding pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any disputation in this regard warrants examination of records which can be done only in an appeal. This Court is not inclined to embark upon such a exercise in writ jurisdiction. It is made clear that this Court is of the view that it cannot be gainsaid that the impugned order has disregarded the Ashok Leyland principle, but whether the material is incriminating is a fact examination which will be done by Appellate Authority. There will be some discussion on alternate remedy i.e., statutory appeal infra in the later portion of this order. 11. This takes us to the next point that turns on another order made with regard to another assessment year namely 2001-2002 being order dated 24.12.2019. Three paragraphs of the said order are of significance and the same read as follows: 'Finally, the dealer requested in their objection letter dated 25.11.2019 to drop the proposed rejection of exemption already allowed as per the original orders passed on 31.03.2003, and follow the guidelines laid down by the Honourable Supreme Court of India in the decision reported in 137 STC 437 in the case of M/s.Ashok Leyland Ltd., and also requested to delete the proposed levy of penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment is made by placing reliance on the accounts furnished by the dealer. This is clearly not a case where best judgment method has been adopted. The materials which according to the impugned order are incriminating material have been relied on. Therefore, the penalty levied definitely calls for interference in writ jurisdiction on the ground that it is contrary to Sriram Packages principle. Therefore, paragraph 7 of the impugned order is set aside. 14. This Court now reverts to the alternate remedy Rule. 15. There is no disputation or disagreement before this Court that statutory appeal qua impugned order is available to the writ petitioner under Section 31 of TNGST Act. Alternate remedy Rule, no doubt is not an absolute rule or in other words, it is a rule of discretion. It is a self imposed restraint qua writ jurisdiction. Notwithstanding this position, Hon'ble Supreme Court in a long line of authorities i.e., 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] a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution 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, 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.' 19. In the instant case, of the exceptions adumbrated in paragraph 11 of Commercial Steel case, excess of jurisdiction i.e., 11(iii) is attracted but that is only with regard to penalty aspect of the impugned order i.e., paragraph 7 of the impugned order as Sri Ram Packages principle clearly forbids levy of penalty absent adoption of best judgment method. 20. Therefore, this is a fit case for relegating the writ petitioner to alternate remedy of statutory appeal under Section 31 (except penalty which is set aside) i.e., tax due portion of impugned order subject of course to pre deposit condition and limitation with regard to the tax due part of the impugned order, if the writ petitioner chooses to do so. 21. Owing to all that have been set out supra, following order is passed: a) impugned order is partly set aside i.e., set aside with regard to penalty alone. To state with specificity, paragraph 7 of the impugned order captioned 'Penalty' is set aside; b) it is axiomatic to the previous limb that rest of the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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