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TMI Blog2021 (12) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... f accounts and come to a conclusion with regard to the points that are being urged. There is no disputation or disagreement that alternate remedy is available to the writ petitioner by way of a statutory appeal under Section 51 of TN VAT Act. The alternate remedy rule no doubt is not an absolute rule. In other words, the alternate remedy rule is a rule of discretion. It is not only a rule of discretion, it is a self restraint qua writ jurisdiction. The campaign of the writ petitioner qua the impugned orders in the captioned four writ petitions fail and the writ petitions are dismissed albeit making it clear that if the writ petitioner chooses the alternate remedy route and files statutory appeals, the same will be considered (subject of course to limitation and pre-deposit condition) by the appellate authority on its own merits and in accordance with law - this Court also makes it clear that this is the third round of litigation in the first tier of tax assessment and therefore, this Court is of the view that it is time that the dealer moves on to the appellate authority which is also an authority which can go into facts including examination of books of accounts. Writ Petitions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 04.03.2021 inter alia permitting an additional show cause notice to be issued. This order was carried in appeal by way of intra Court appeals and Hon'ble Division Bench disposed of the four writ appeals ie., W.A. (MD)Nos.910 to 913 of 2021 in and by a common order dated 28.04.2021, interfering with the order of the Hon'ble Single Judge and saying that in cases of this nature, production of books of accounts is necessary and fresh notices have to be issued. e) Pursuant to the aforesaid order of the Hon'ble Division Bench fresh notices were issued on 14.07.2021 which met with atleast four letters dated 30.07.2021, 03.08.2021, 05.08.2021 and 09.08.2021 seeking extension of time to respond. Ultimately objections for the four assessment years along with purchase and sales statements were filed on 27.08.2021. Thereafter, pre-revision notices were issued for the four assessment years all dated 03.09.2021. These 03.09.2021 pre-revision notices (four in number) were assailed by the writ petitioner by way of four writ petitions being W.P.(MD)Nos. 17985 to 17988 of 2021 and all these four writ petitions came to be dismissed by another Hon'ble Single Judge on 04.10.2021 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent authority who is not bound by the proposals made by the VAT audit team and therefore some more time need to be given for producing all the books of accounts. d) There is a reference to writ petitioner's objection dated 27.08.2021 in the impugned orders but the same has not been considered. 7.Mr.M.Lingadurai, learned Special Government Pleader accepted notice on behalf of the lone respondent. 8.Owing to the narrow compass on which the captioned matter turns, main writ petitions were taken up with the consent of both sides. 9.Learned Revenue Counsel ie., learned State Counsel [Special Government Pleader] made submissions which are as follows: a) The argument turning on 03.09.2021 pre-revisional notices cannot be used now as the same has been conclusively decided by a common order dated 28.09.2021. b) It cannot be stated that adequate opportunity has not been given as the impugned orders make it clear that the writ petitioner instead of producing books of accounts and other records for verification as directed by the Hon'ble High Court has filed only details which are already available with the department. However, further opportunity was given to the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discuss the same and give my dispositive reasoning for the conclusion which has ultimately been arrived at infra. 12.The first point turns on 03.09.2021 pre-revisional notices. As rightly pointed out by learned Revenue Counsel, this matter cannot be gone into by this Court. This is a matter of judicial discipline. The 03.09.2021 pre-revisional notices were challenged by the writ petitioner dealer by way of four writ petitions ie., W.P. (MD)Nos.17985 to 17988 of 2021 and all the four writ petitions were dismissed by a common order by another Hon'ble Single Judge. This 04.10.2021 order was carried in appeal by way of four intra Court appeals and a Hon'ble Division Bench has dismissed all the four writ appeals by a common order dated 28.10.2021. This Court deems it appropriate to scan and reproduce the entire order of the Hon'ble Division Bench and the same is as follows: BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.10.2021 CORAM: THE HONOURABLE MR.JUSTICE M.DURAISWAMY AND THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR W.A(MD)Nos.1974, 1975, 1976 & 1977 of 2021 and C.M.P(MD)Nos.8924, 8925, 8926 & 8927 of 2021 M/s.V.R.Muthu & Bros, Rep. by its Partner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued in the Circular, dated 04.11.2013 and directed the Assessing Officer to form a prima facie opinion and thereafter, issue revision notice, cause sufficient opportunity to the appellant to submit their objections and thereafter, after affording an opportunity of hearing, complete the assessment. The Division Bench also directed the respondent to comply with the directions within a period of four weeks from the date of receipt of a copy of the Judgment. After disposal of the Writ Appeals, the respondent issued notices on 14.07.2021 and after affording sufficient opportunity to the appellant, passed orders of assessment on 28.09.2021. Challenging the notices issued by the respondent on 03.09.2021 contending that the respondent had declined to grant time for submitting their explanation, the appellant filed the Writ Petitions. 5.The learned Single Judge, taking into consideration the opportunities given by the respondent to the appellant and also taking note of the fact that the respondent had passed an order of assessment dated 28.09.2021, dismissed the Writ Petitions giving liberty to the appellant to challenge the orders of assessment, dated 28.09.2021 in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent after which the pre-revisional notices came to be issued challenge to which failed before the Single Judge whose order has now been confirmed by a Hon'ble Division Bench. Therefore, in this view of the matter, reliance placed on Emcee Chemicals Vs. The Registrar, Tamil Nadu Taxation Special Tribunal in W.P.Nos.8766 to 8768 of 2000 ie., Emcee Chemicals case principle to say how the assessing officer should proceed which has been reiterated in the subsequent 28.04.2021 order of Hon'ble Division Bench is now not available to the writ petitioner. Much water has flown under the bridge as already alluded to supra and the matter now rests on the last of the orders made by the Hon'ble Division Bench being order dated 28.10.2021 which has been scanned and reproduced in its entirety. 16.I now proceed to examine the next argument which turns on non-consideration of the objections of the writ petitioner dated 27.08.2021. The argument is, the objections have been referred to in the impugned orders but the same have not been considered. A careful perusal of the impugned orders reveal that it has not been referred to in all the impugned orders but in any event, the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and what I have mentioned are oft quoted judgments for the proposition that alternate remedy rule has to be applied with utmost rigour in fiscal Statutes. 18.Relevant paragraph in Dunlop India case is paragraph No.3 and the same reads as follows: ''3. ....... Article 226 is not meant to shortcircuit or circumvent statutory procedures. It is only where statutory remedies are entirely illsuited 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 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 prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to supply emphasis and highlight)' 20. To be noted in paragraph No.10 of K.C.Mathew case, the Satyawati Tondon case law has been extracted, reproduced and reiterated and therefore, I deem it appropriate not to burden this order with extracts from Satyawati Tondon case. 21.I find that the above proposition applies in all fours to the case on hand as the matter does not fall under any of the exceptions to the alternate remedy rule. To be noted, the exceptions have been adumbrated in the oft quoted Whirlpool Corporation case [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1]. This has come to stay in litigation parlance as Whirlpool exceptions. More importantly, in a very recent judgment a three member Bench of the Hon'ble Supreme Court in Civil Appeal No. 5121 of 2021 [The Assistant Commissioner of State Tax and Others Vs. M/s. Commercial Steel Limited] vide dated 03.09.2021 culled out the exceptions and held that interference in writ jurisdiction should be only in exceptional cases and adumbrated the exceptions. The relevant paragraphs in Commercial Steel case are paragraph Nos.11 & 12 and the same reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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