Madras High Court
M/S.Consolidated Construction ... vs The Commercial Tax Officer on 11 August, 2021
W.P. No. 5977 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P. No. 5977 of 2015
and
W.M.P. No. 1 of 2015
M/s.Consolidated Construction Consortium Ltd.,
Represented by V.Meenakshi Sundaram,
Manager (Accounts) and the authorised signatory,
No.5, 2nd Link Street,
CIT Colony,
Mylapore, Chennai - 600 004. ... Petitioner
-vs-
The Commercial Tax Officer,
Mylapore Assessment Circle,
Chennai. ... Respondent
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of Writ of Certiorari calling for the records of
the impugned revised order of assessment in TIN
No.33190701326/2013-14 dated 11.02.2015 on the file of the respondent
herein and quash the same.
For Petitioner : Ms.Aparna Nandakumar
For Respondent : Mr.V.Veluchamy
Government Advocate
1/10
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W.P. No. 5977 of 2015
ORDER
The writ on hand is filed questioning the validity of the order dated
11.02.2015 issued by the respondent.
2. The petitioner is engaged in execution of works contract and
executed work for the Airports Authorities of India, Adyar Cancer
Institute and various SEZ developers and Co-developers such as Nokia,
Cheyyar etc. The petitioner is a registered dealer under the provisions of
the Tamil Nadu Value Added Tax Act, 2006 and the petitioner claimed
Input Tax Credit under Section 5(2) r/w Section 19(1) proviso of the
Tamil Nadu Value Added Tax Act against their output tax liability. Most
specifically for the assessment year 2013-14, an adjudication was made
and the authority passed the order rejecting the claim of the writ
petitioner.
3. The learned counsel for the petitioner drawn the attention of this
Court with reference to the order impugned passed by the respondent and
contended that, the petitioner was not provided with an opportunity to
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W.P. No. 5977 of 2015
put forth their case in entirety. It is stated in the impugned order that the
petitioner has not established movement of goods and the mode of
payment was also not proved. In this regard, the learned counsel for the
petitioner made a submission that the petitioner was not provided with an
opportunity to establish the same, if any such query if at all raised the
petitioner was in a position to establish the said facts and therefore, the
order was passed in violation of the principles of natural justice.
4. The issues raised on merits cannot be adjudicated by this Court in
a writ proceedings. Such an adjudication of the disputed facts required
scrutinization of documents and evidences in original.
5. As far as the ground raised by the petitioner is concerned, the
impugned order reveals that the notice was issued to the petitioner dealer
on 07.11.2014 and the dealer have filed reply in writing on 24.11.2014
and a personal hearing was provided on 11.02.2015. The petitioner
dealer also replied that the registration was cancelled with retrospective
date and produced the monthly returns for the month of March 14 filed
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W.P. No. 5977 of 2015
by the Tvl.Ocean Impex and the dealers have produced the original
invoices at the time of personal hearing. Thus, this Court is of an opinion
that an opportunity was provided to the petitioner, however, the
sufficiency of the opportunity is questioned, then the Petitioner would
have filed an appeal and the High Court cannot venture into the
adjudication of the disputed facts. It is not the case, where there is no
opportunity was provided. The sufficiency of the opportunity is
questioned by the petitioner. In such circumstances, the Appellate
remedy would be proper and Appellate Authority is a quasi-judicial
authority and therefore, empower to adjudicate both the question of facts
as well as the legal grounds raised along with the Judgment relied upon.
6. The impugned order states that the petitioner has not proved the
movement of goods and further not moved the mode of payment. These
issues require an adjudication with reference to the documents and
evidences. The Appellate Authority is the final fact finding authority and
therefore competent to call for the original records and adjudicate the
issues by affording an opportunity to all the parties.
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W.P. No. 5977 of 2015
7. The importance of appellate remedy at no circumstances be
undermined. The valuable right of an assessee to redress his grievances
in an appeal under statute need not be taken away in a routine manner. If
such remedy is taken away, the aggrieved person is deprived of one
opportunity of effective adjudication before the Appellate Authority with
reference to the disputed facts and perusal of the original documents.
Therefore, exhausting the appellate remedy in such circumstances is not
only relevant, but valuable both for the assessee as well as to the
Revenue.
8. Preferring an appeal is the rule. Entertaining a Writ Petition
before exhausting the appellate remedy is an exception. Undoubtedly,
writ proceedings may be entertained before exhausting the appellate
remedy. However, it is to be ensured that there is an imminent threat or
gross injustice warranting urgent relief to be granted. Mere violation of
principles of natural justice is insufficient to entertain a writ proceedings
under Article 226 of the Constitution of India, as every Writ Petition is
filed based on one or the other ground stating that the principles of
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W.P. No. 5977 of 2015
natural justice is violated or statutory requirements are not complied with
or there is an illegality or otherwise. Thus, dispensing with an appellate
remedy is to be granted cautiously in view of the fact that the very
purpose and object of legislation providing an appellate remedy cannot
be diluted nor the benefit be denied to the aggrieved person to exhaust
the same. The statutory appellate authorities are the final fact finding
authorities. Thus, the finding to be made by such appellate authorities
with reference to the documents and evidences are of paramount
importance for the purpose of exercise of judicial review by the High
Court under Article 226 of the Constitution of India.
9. The power of judicial review of the High Court under Article
226 of the Constitution of India is to scrutinize the processes through
which a decision is taken by the competent authority by following the
procedures as contemplated, but not the decision itself. Therefore, the
routine entertainment of a Writ Petition by dispensing with appellate
remedy is not preferable and such an exercise would cause injury to the
institutional hierarchy and the importance attached to such appellate
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W.P. No. 5977 of 2015
institutions. The appellate institutions provided under the statute at no
circumstances be undermined by the higher Courts. The appellate forums
are the final fact finding authorities and more so, possessing expertise in
a particular field. Thus, the finding of such appellate forums would be a
valuable assistance for the purpose of exercise of judicial review by the
High Court under Article 226 of the Constitution of India. The High
Court cannot conduct a roving enquiry with reference to the facts and
circumstances based on the documents and evidences. Based on the mere
affidavits filed by the litigants, the disputed facts cannot be concluded.
Thus, the importance of fact finding by the appellate forums is of more
value for the purpose of providing complete justice to the parties
approaching the Court of law.
10. The point of delay may be an acceptable ground for the
purpose of entertaining a Writ Petition. The practise of filing the Writ
Petition without exhausting the statutory remedies are in ascending mode
and such Writ Petitions are filed with a view to avoid pre-deposits to be
made in statutory appeals and on the ground that the appellate remedies
are time consuming.
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W.P. No. 5977 of 2015
11. In view of the facts and circumstances, the petitioner is at liberty
to prefer an appeal before the Competent Appellate Authority within a
period of four weeks from the date of receipt of a copy of this order in a
prescribed format and by applying with the provisions of statutory rules.
In the event of filing of such appeal, the Competent Appellate Authority
shall condone the delay if any considering the fact that the Writ Petition
is pending before this Court and dispose of the appeal on merits and in
accordance with law and by affording an opportunity to the writ
petitioner as expeditiously as possible.
12. With these directions, the Writ Petition stands disposed of.
However, there shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
11.08.2021
Index: Yes
Speaking Order: Yes
vji
Note:The Registry of the High Court is
directed to return the original copy of the
impugned order to the counsel on record.
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W.P. No. 5977 of 2015
To
The Commercial Tax Officer,
Mylapore Assessment Circle,
Chennai.
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W.P. No. 5977 of 2015
S.M.SUBRAMANIAM, J.
vji
W.P. No. 5977 of 2015
and
W.M.P. No. 1 of 2015
11.08.2021
http://www.judis.nic.in
