Madras High Court
M/S.Bmw India Pvt Ltd vs State Of Tamil Nadu on 24 August, 2021
WP Nos.18913 and 18914 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24-08-2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP Nos.18913 and 18914 of 2013
And
MP Nos.1, 1, 2 and 2 of 2013
M/s.BMW India Pvt Ltd.,
1st Main Road, Off: 2nd Avenue,
Mahindra World City,
Natham Sub-Post,
Chengalpet-603 002,
Represented by its Authorised Signatory
Mr.Venkataraman Chandrasekar Babu. .. Petitioner in both WPs
vs.
1.State of Tamil Nadu
Represented by its Secretary,
Ministry of Finance,
Secretariat,
Fort St. George,
Chennai-600 009.
2.Joint Commissioner (CT)-I,
32(123) Dugar Towers,
Marshal Road,
Egmore,
Chennai-600 008.
1/35
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3.Joint Commissioner (CT)-Appeals,
Commercial Taxes Annexe Building,
III Floor, Greams Road,
Chennai-600 006.
4.Deputy Commissioner (CT)-I,
32(123) Dugar Towers,
Marshal Road,
Egmore,
Chennai-600 008. .. Respondents in both WPs
WP 18913 of 2013 is filed under Article 226 of the Constitution
of India, praying for the issuance of a Writ of Certiorari, calling for the
records and quash the impugned order dated 24.05.2013 made in AP No.1
of 2013 passed by respondent No.3 herein for Assessment Year 2007-2008.
WP 18914 of 2013 is filed under Article 226 of the Constitution
of India, praying for the issuance of a Writ of Certiorari, calling for the
records and quash the impugned notice dated 27.06.2013 made in
CST/845546/2007-2008 passed by the respondent No.2 herein for
Assessment Year 2007-2008 proposing the enhancement of the petitioner's
taxable turnover for assessment under the Tamil Nadu Value Added Tax
Act.
For Petitioner in both WPs : Mr.Tarun Gulati,
Senior Counsel for
Mr.R.Sandeep Bagmar.
For Respondents in both WPs: Mr.V.Nanmaran,
Government Advocate.
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COMMON ORDER
WP No.18913 of 2013 is filed questioning the sustainability of
the appellate order passed by the third respondent dated 24.05.2013 in AP
No.1 of 2013.
2. WP No.18914 of 2013 is filed, calling for the records and
quash the impugned notice dated 27.06.2013 made in CST/845546/2007-
2008 passed by the respondent No.2 herein for Assessment Year 2007-2008
proposing the enhancement of the petitioner's taxable turnover for
assessment under the Tamil Nadu Value Added Tax Act.
3. The petitioner is a Private Limited Company incorporated
under the Companies Act, 1956.
4. The learned Senior Counsel, appearing on behalf of the
petitioner, contended that the order impugned is in violation of the
provisions of the Sales Tax Act, more specifically, Section 3 and further, the
order was passed without providing an opportunity to the writ petitioner.
Thus, it is a case of violation of the principles of natural justice and the
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orders impugned lacks jurisdiction and thus, the writ petitions are to be
considered.
5. It is contended that the petitioner was not given notice of the
intention of the third respondent to treat the entire turnover of sale involving
dealers outside Tamil Nadu as local sales. Section 52(3) of the Tamil Nadu
Value Added Tax Act, stipulates that the appellant shall be given a
reasonable opportunity of being heard.
6. Perusal of the orders would reveal that no such opportunity in
relation to the proposed assessment was provided to the petitioner's turnover
under the Tamil Nadu Value Added Tax Act, was ever given and the
hearing was restricted to the levies confirmed under the Central Sales Tax
Act by the fourth respondent. Thus, the orders impugned are unreasonable
and in violation of the principles of natural justice.
7. Even the enhancement of turnover was made by the third
respondent in the appeal without issuing any separate notice to the
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petitioner and by affording opportunity to establish their case. Even on that
count, the writ petitions are to be considered.
8. The learned Senior Counsel, appearing on behalf of the
petitioner, solicited the attention of this Court with reference to the findings
made by the Appellate Authority and reiterated that the opportunity of being
heard was denied and therefore, the impugned orders are liable to be set
aside.
9. Regarding the order passed by this Court on 29.03.2021 in WP
No.18071 of 2013 [M/s.Saint Gobain Glass India Ltd vs. The Appellate
Joint Commissioner (CT) and another], the learned Senior Counsel,
appearing on behalf of the petitioner, is of an opinion that the factual issues
raised pertinently in these writ petitions may not have any straight
application with reference to the findings in the abovesaid judgment and
based on the abovesaid judgment, these writ petitions need not be
considered.
10. In M/s.Saint Gobain Glass India Ltd's case (cited supra),
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this Court has upheld the actions of the respondents. However, in these writ
petitions, the ground regarding violation of principles of natural justice and
other factual grounds, are also raised.
11. The learned Government Advocate, appearing on behalf of the
respondents, opposed the said contentions of the learned Senior Counsel
appearing on behalf of the petitioner by stating that the issues raised by the
petitioner are elaborately adjudicated by the Appellate Authority in the
impugned orders. If at all the petitioner is aggrieved, it is for them to prefer
an appeal before the Tribunal as contemplated under the provisions of the
Act. Thus, these writ petitions are to be rejected.
12. When an appellate remedy is available to the petitioner
under the provisions of the Act, the High Court need not adjudicate the
disputed facts on merits. The Tamil Nadu Sales Tax Appellate Tribunal is
empowered to adjudicate jurisdictional issues, factual disputes, legal
grounds, including violation of principles of natural justice. Undoubtedly,
the High Court may entertain a writ petition, if any direct violation of
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principles of natural justice has been established. However, if such
violations are established in connection with certain disputed facts and
circumstances, then it is preferable to direct the aggrieved person to
approach the Competent Appellate Authority. In other words, the principles
of violation of natural justice or incompetency of an authority directly
hitting the provisions of the Statute may be entertained by the High Court.
However, if those violations and jurisdictional aspects are raised in
connection with certain factual aspects, then such factual aspects required
an elaborate adjudication, which need not be undertaken by the High Court
in the absence of examination of original documents and evidences.
13. The importance of appellate remedy is to be considered. The
appellate remedy contemplated under the Statutes at no circumstances be
undermined. The Tamil Nadu Sales Tax Appellate Tribunal consists of
Expert Presiding Officers, who all are well versed in Taxation Laws.
Undoubtedly, they are competent to decide both the factual as well as the
legal issues raised between the parties. Thus, the High Court need not
burden itself in respect of the writ petitions filed without exhausting the
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appellate remedy provided under the Statutes. In such circumstances, the
very purpose and object of such appellate remedy gets defeated. Therefore,
the petitioner in this regard is bound to prefer an appeal before the Tribunal.
To reiterate, filing an appeal is the Rule, entertaining a writ petition is an
exception. Only if the incompetency of an authority is established directly
hitting the provisions of the Act, then alone, the writ may be entertained and
in all other circumstances, the aggrieved persons must be allowed to exhaust
the appellate remedy, which is a valuable opportunity. An aggrieved person
need not be deprived of such an opportunity of appeal unnecessarily, as the
grievances may be redressed effectively even before the Sales Tax
Appellate Tribunals.
14. The importance of the appellate remedy and the legislative
intention in this regard and dispensing with the appellate remedy as
contemplated are considered by this Court elaborately in the case of Sri
Sathya Jewellery vs. Principal Commissioner of Customs [CDJ 2021
MHC 1799] and the relevant paragraphs 11 to 18 are extracted hereunder:-
“11.This Court is of the considered opinion
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that all such grounds raised on merits are to be
adjudicated with reference to the documents and
evidences to be produced and the scope of the writ
petition under Article 226 of the Constitution of
India cannot be expanded so as to exercise the
powers of the appellate authority in the matter of
examination or scrutiny of original documents and
evidences produced by the respective parties. The
very purpose of the statutory appeal is to
scrutinize the orders passed by the original
authorities, and therefore, the legislative intention
in this regard is to be scrupulously followed in the
mater of adjudication of merits with reference to
the documents and evidences.
12.In common parlance, Statutes contain appeal
provisions. In some of the Statutes, there are two-
tier appeal provisions in order to ensure that the
facts, grounds, evidences are appreciated and the
grievances are redressed in the manner known to
law. Such appeal provisions are provided with the
legislative intention to provide remedy to the
aggrieved persons. The High Court, in normal
circumstances, would not interfere nor dispense
with the appellate remedy.
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13.The High Court cannot adjudicate the facts
and merits with reference to documents and
evidences. Trial is not entertainable under Article
226 of the Constitution of India. All such
procedural aspects are to be followed by complete
adjudication/trial by the original authorities as
well as by the appellate authorities under the
provisions of the Statute and the powers under
Article 226 of the Constitution of India is limited
to find out whether the processes contemplated
under the Statutes and the procedural aspects are
followed by the competent authorities as well as
the appellate authorities or not. The High Court,
under Article 226 of the Constitution of India, is
not expected to usurp the powers of the appellate
authorities by adjudicating the merits of the matter
on certain documents and evidences. In the event
of adjudication of merits under Article 226 of the
Constitution of India in the absence of complete
trial with reference to the documents and
evidences, there is a possibility of miscarriage of
justice, and therefore, the High Court is expected
to be cautious, while entering into the venture of
adjudication of certain merits with reference to the
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original documents and evidences produced by the
respective parties to the lis. This being the
legislative intention, High Court is expected to
trust the institutional authorities as well as the
hierarchy of institutions contemplated under the
Statutes. Institutional respects are of paramount
importance for providing complete justice to the
parties and the various stages of adjudication are
important for the purpose of correcting omissions,
commissions, errors in appreciation of evidence,
etc. Powers of the High Court under Article 226
of the Constitution of India cannot be extended nor
widened so as to allow lay hands on the facts and
circumstances by conducting the trial, nor certain
facts and circumstances with reference to
documents and evidences can be assumed or
presumed or inference can be drawn, which is not
preferable.
14.This Court elaborately discussed the
importance of exhausting the appellate remedy in
the case of M/s.Hyundai Motor India Limited v.
The Deputy Commissioner of Income Tax,
Chennai and another [W.P.No.22508 of 2017
dated 16.07.2018], from which, the following
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paragraphs are extracted :
“19.Unnecessary or routine invasion into the
statutory powers of the competent authorities
under a statute should be restrained by the
Constitutional Courts. Frequent or unnecessary
invasions in the executive power will defeat the
constitutional perspectives enshrined under the
Constitution of India. Undoubtedly, the separation
of powers under the Indian Constitution has been
narrated and settled in umpteen number of
judgments. Separation of powers demarcated in
the Constitution of India is also to be considered,
while exercising the powers of judicial review in
the matter of dispensing with the appeal remedy
provided for an aggrieved person under a statute.
If the High Courts started interfering with such
Appellate powers without any valid and
substantiated reasons, then the very purpose and
object of the statute and provision of appeal under
the statute became an empty formality and the
High Courts also should see that the provisions of
appeal contemplated under the statutes are
implemented in its real spirit and in accordance
with the procedures contemplated under the rules
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constituted thereon. While entertaining a writ
petition as narrated by the Apex Court, the
provision of efficacious alternative remedy under
the statute also to be considered. If the writ
petitions are entertained in a routine manner, by
not allowing the competent Appellate authority to
exercise their powers under the provisions of the
statute, then this Court is of an opinion that the
power of judicial review has not exercised in a
proper manner. Thus, it is necessary for this Court
to elaborate the legal principle settled in respect of
the separation of powers under the Constitution of
India.
1. Madras Bar Association vs. Union of India
(UOI) (25.09.2014 - SC) : MANU/SC/0875/2014
If the historical background, the preamble, the
entire scheme of the Constitution, relevant
provisions thereof including Article 368 are kept
in mind there can be no difficulty in discerning
that the following can be regarded as the basic
elements of the constitutional structure. (These
cannot be catalogued but can only be illustrated):
(1) The supremacy of the Constitution.
(2) Republican and Democratic form of
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government and sovereignty of the country.
(3) Secular and federal character of the
Constitution.
(4) Demarcation of power between the
Legislature, the executive and the judiciary.
(5) The dignity of the individual secured by the
various freedoms and basic rights in Part III and
the mandate to build a welfare State contained in
Part IV.
(6) The unity and the integrity of the Nation.
2. Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and
Anr. [MANU/SC/0445/1973 : (1973) 4 SCC
225].
That separation of powers between the
legislature, the executive and the judiciary is the
basic structure of the Constitution is expressly
stated by Sikri, C.J.
3. P. Kannadasan and Ors. v. State of T.N. and
Ors. [MANU/SC/0650/1996 : (1996) 5 SCC 670]
the Supreme Court noted that the Constitution of
India recognised the doctrine of separation of
powers between the three organs of the State,
namely, the legislature, the executive and the
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judiciary. The Court said:
It must be remembered that our Constitution
recognises and incorporates the doctrine of
separation of powers between the three organs of
the State, viz., the Legislature, the Executive and
the Judiciary. Even though the Constitution has
adopted the parliamentary form of government
where the dividing line between the legislature and
the executive becomes thin, the theory of
separation of powers is still valid.
4. State of Tamil Nadu and Ors. vs. State of
Kerala and Ors. (07.05.2014 - SC) :
MANU/SC/0425/2014
121. On deep reflection of the above discussion, in
our opinion, the constitutional principles in the
context of Indian Constitution relating to
separation of powers between legislature,
executive and judiciary may, in brief, be
summarized thus:
(i) Even without express provision of the
separation of powers,the doctrine of separation of
powers is an entrenched principle in the
Constitution of India.
The doctrine of separation of powers informs the
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Indian constitutional structure and it is an
essential constituent of rule of law.
In other words, the doctrine of separation of
power though not expressly engrafted in the
Constitution, its sweep, operation and visibility
are apparent from the scheme of Indian
Constitution. Constitution has made demarcation,
without drawing formal lines between the three
organs- legislature, executive and judiciary. In
that sense, even in the absence of express
provision for separation of power, the separation
of power between legislature, executive and
judiciary is not different from the constitutions of
the countries which contain express provision for
separation of powers.
(ii) Independence of courts from the executive
and legislature is fundamental to the rule of law
and one of the basic tenets of Indian
Constitution.
Separation of judicial power is a significant
constitutional principle under the Constitution of
India.
(iii) Separation of powers between three organs--
legislature, executive and judiciary--is also
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nothing but a consequence of principles of
equality enshrined in Article 14 of the
Constitution of India. Accordingly, breach of
separation of judicial power may amount to
negation of equality Under Article 14. Stated thus,
a legislation can be invalidated on the basis of
breach of the separation of powers since such
breach is negation of equality Under Article 14 of
the Constitution.
(iv) The superior judiciary (High Courts and
Supreme Court) is empowered by the Constitution
to declare a law made by the legislature
(Parliament and State legislatures) void if it is
found to have transgressed the constitutional
limitations or if it infringed the rights enshrined in
Part III of the Constitution.
(v) The doctrine of separation of powers applies to
the final judgments of the courts. Legislature
cannot declare any decision of a court of law to be
void or of no effect. It can, however, pass an
amending Act to remedy the defects pointed out by
a court of law or on coming to know of it aligned.
In other words, a court's decision must always
bind unless the conditions on which it is based are
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so fundamentally altered that the decision could
not have been given in the altered circumstances.
(vi) If the legislature has the power over the
subject-matter and competence to make a
validating law, it can at any time make such a
validating law and make it retrospective. The
validity of a validating law, therefore, depends
upon whether the legislature possesses the
competence which it claims over the subject-
matter and whether in making the validation law it
removes the defect which the courts had found in
the existing law.”
20.This Court is of a strong opinion that
institutional respects are to be maintained by the
constitutional Courts. Whenever there is a
provision for an appeal under the statute, without
exhausting the remedies available under the
statute, no writ petition can be entertained in a
routine manner. Only on exceptional
circumstances, the remedy of appeal can be
waived, if there is a gross injustice or if there is a
violation of fundamental rights ensured under the
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Constitution of India. Otherwise, all the aggrieved
persons from and out of the order passed by the
original authority is bound to approach the
Appellate Authority. The Constitutional Courts
cannot make an appeal provision as an empty
formality. Every Appellate Authority created under
the statute to be trusted in normal circumstances
unless there is a specific allegation, which is
substantiated in a writ proceedings. Thus, the
institutional functions and exhausting the appeal
remedies by the aggrieved persons, are to be
enforced in all circumstances and writ
proceedings can be entertained only on
exceptional circumstances. Rule is to prefer an
appeal and entertaining a writ is only an
exception. This being the legal principles to be
followed, this Court cannot entertain the writ
petitions in a routine manner by waiving the
remedy of appeal provided under the statute.
21.Now, let us look into the legal principles
settled by the Apex Court for exhausting the
efficacious alternative remedy provided under the
statute.
22.When an effective alternative remedy is
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available, a writ petition cannot be maintained
1. In City and Industrial Development
Corporation v. DosuAardeshirBhiwandiwala and
Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168,
this Court had observed that:
The Court while exercising its jurisdiction under
Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any
complex and disputed questions of facts and
whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the Petitioner has any alternative or effective
remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of
unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred
by any valid law; and host of other factors.
2. KanaiyalalLalchand Sachdev and Ors. vs.
State of Maharashtra and Ors. (07.02.2011 - SC)
: MANU/SC/0103/2011
It is well settled that ordinarily relief Under
Articles 226/227 of the Constitution of India is not
available if an efficacious alternative remedy is
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available to any aggrieved person. (See Sadhana
Lodh v. National Insurance Co. Ltd.; Surya Dev
Rai v. Ram Chander Rai and SBI v. Allied
Chemical Laboratories.)
3. Commissioner of Income Tax and Ors. v.
ChhabilDass Agarwal, MANU/SC/0802/2013 :
2014 (1) SCC 603, as follows:
Para 15. while it can be said that this Court has
recognised some exceptions to the Rule of
alternative remedy i.e. where the statutory
authority has not acted in accordance with the
provisions of the enactment in question, or in
defiance of the fundamental principles of judicial
procedure, or has resorted to invoke the provisions
which are repealed, or when an order has been
passed in total violation of the principles of
natural justice, the proposition laid down in
ThansinghNathmal case, Titaghur Paper Mills
case and other similar judgments that the High
Court will not entertain a petition Under Article
226 of the Constitution if an effective alternative
remedy is available to the aggrieved person or the
statute under which the action complained of has
been taken itself contains a mechanism for
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redressal of grievance still holds the field.
Therefore, when a statutory forum is created by
law for redressal of grievances, a writ petition
should not be entertained ignoring the statutory
dispensation.
4. Authorized Officer, State Bank of Travancore
and Ors. vs. Mathew K.C. (30.01.2018 - SC) :
MANU/SC/0054/2018
The petitioner argued that the SARFAESI Act is a
complete code by itself, providing for expeditious
recovery of dues arising out of loans granted by
financial institutions, the remedy of appeal by the
aggrieved under Section 17 before the Debt
Recovery Tribunal, followed by a right to appeal
before the Appellate Tribunal under Section 18.
The High Court ought not to have entertained the
writ petition in view of the adequate alternate
statutory remedies available to the Respondent.
The interim order was passed on the very first
date, without an opportunity to the Appellant to
file a reply. Reliance was placed on United Bank
of India vs. Satyawati Tandon and others, 2010 (8)
SCC 110, and General Manager, Sri Siddeshwara
Cooperative Bank Limited and another vs. Ikbal
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and others, 2013 (10) SCC 83. The writ petition
ought to have been dismissed at the threshold on
the ground of maintainability. The Division Bench
erred in declining to interfere with the same. The
Supreme Court agreed to the arguments and held
the same also noted that the writ petition ought not
to have been entertained and the interim order
granted for the mere asking without assigning
special reasons, and that too without even
granting opportunity to the Appellant to contest
the maintainability of the writ petition and failure
to notice the subsequent developments in the
interregnum.
5. State of Himachal Pradesh v. Gujarat Ambuja
Cement Ltd. reported at AIR 2005 SC 3856, the
Supreme Court explained the rule of 'alternate
remedy' in the following terms
Considering the plea regarding alternative remedy
as raised by the appellant-State. Except for a
period when Article 226 was amended by the
Constitution (42nd Amendment) Act, 1976, the
power relating to alternative remedy has been
considered to be a rule of self imposed limitation.
It is essentially a rule of policy, convenience and
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discretion and never a rule of law. Despite the
existence of an alternative remedy it is within the
jurisdiction of discretion of the High Court to
grant relief under Article 226 of the Constitution.
At the same time, it cannot be lost sight of that
though the matter relating to an alternative
remedy has nothing to do with the jurisdiction of
the case, normally the High Court should not
interfere if there is an adequate efficacious
alternative remedy. If somebody approaches the
High Court without availing the alternative
remedy provided the High Court should ensure
that he has made out a strong case or that there
exist good grounds to invoke the extraordinary
jurisdiction.
6. K.S. Rashid and Sons v. Income Tax
Investigation Commission and Ors., AIR (1954)
SC 207; Sangram Singh v. Election Tribunal,
Kotah and Ors., AIR (1955) SC 425; Union of
India v. T.R. Varma, AIR (1957) SC 882; State of
U.P. and Ors. v. Mohammad Nooh, AIR (1958)
SC 86 and M/s K.S. Venkataraman and Co. (P)
Ltd. v. State of Madras, AIR (1966) SC 1089,
Constitution Benches of the Supreme Court held
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that Article 226 of the Constitution confers on all
the High Courts a very wide power in the matter of
issuing writs. However, the remedy of writ is an
absolutely discretionary remedy and the High
Court has always the discretion to refuse to grant
any writ if it is satisfied that the aggrieved party
can have an adequate or suitable relief elsewhere.
The Court, in extraordinary circumstances, may
exercise the power if it comes to the conclusion
that there has been a breach of principles of
natural justice or procedure required for decision
has not been adopted.
7. First Income-Tax Officer, Salem v. M/s. Short
Brothers (P) Ltd., [1966] 3 SCR 84 and State of
U.P. and Ors. v. M/s. Indian Hume Pipe Co. Ltd.,
[1977] 2 SCC 724.
There are two well recognized exceptions to the
doctrine of exhaustion of statutory remedies. First
is when the proceedings are taken before the
forum under a provision of law which is ultra
vires, it is open to a party aggrieved thereby to
move the High Court for quashing the proceedings
on the ground that they are incompetent without a
party being obliged to wait until those proceedings
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run their full course. Secondly, the doctrine has no
application when the impugned order has been
made in violation of the principles of natural
justice. We may add that where the proceedings
itself are an abuse of process of law the High
Court in an appropriate case can entertain a writ
petition.”
15.As far as the judgment of the Hon'ble
Supreme Court of India in the case of M/s.Canon
India Private Limited (supra) is concerned, as
rightly pointed out by the learned Senior Standing
Counsels appearing on behalf of the respondents
that the matter went to the Hon'ble Apex Court by
way of regular appeal and the Hon'ble Supreme
Court of India, while adjudicating the final orders
passed by the Appellate Tribunal, formed an
opinion that the issuance of show cause notice
itself was by an improper authority. Thus, by
citing the said finding, the appellate remedy
otherwise provided under the Statute cannot be
dispensed with, and in the event of accepting the
said contention, in all such cases, every litigant
will approach the High Court by way of writ
petition bypassing the appellate remedy, which is
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not desirable and cannot be accepted. As
observed earlier, Institutional respect is of
paramount importance. Even the point of
jurisdiction, limitation, error apparent on the face
of the record, are on merits and all are to be
adjudicated before the appellate authority and the
appellate authority, more specifically, the
Appellate Tribunal or the Commissioner
(Appeals), as the case may be, is empowered to
adjudicate all such legal grounds raised by the
respective parties and make a finding on merits.
Thus, usurping the powers of the appellate
authorities by the High Court by invoking its
powers under Article 226 of the Constitution of
India is certainly unwarranted. The parties must
be provided an opportunity to approach the
appropriate authorities for redressal of their
grievances in the manner known to law. In the
event of entertaining all such writ petitions, the
High Court will not only be over-burdened, but
usurping the powers of the appellate authority is
certainly not desirable.
16.Jurisdictional error should not result in
exoneration of liability. Jurisdictional error, if any
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committed, is technical, and thus, rectifiable. In
such circumstances, the Courts are expected to
quash the order passed by an incompetent
authority and remand the matter back for fresh
adjudication. Contrarily, if an assessee is
exonerated from liability, undoubtedly, the
purpose and object of the Act is defeated.
17.The growing practice in the High Court is to
file writ petitions under Article 226 of the
Constitution of India without exhausting the
statutory remedies provided under the Act. The
point raised in this regard are statutory violations.
However, even such statutory violations can be
dealt with by the Appellate authorities or the
Appellate Tribunals. This apart, in a writ petition,
if such orders passed with jurisdictional errors
and quashed without any remand, then an injustice
would be caused to the very spirit of the Statute
enacted for the benefit of the public at large. Thus,
Courts are expected to be cautious, while granting
exoneration of liability merely on the ground of
jurisdictional errors, if any committed by the
authorities competent. On some occasions,
jurisdictional errors are committed wantonly or in
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WP Nos.18913 and 18914 of 2013
collusion with the assessees, knowingly that there
is a possibility of escaping from the clutches of
law. Thus, the higher authorities of the
Department are expected to be watchful and
review the orders passed by the Subordinate
authorities and in the event of any negligence,
dereliction of duty, collusion or corrupt activities,
then such officials are liable to be prosecuted
apart from initiation of departmental disciplinary
proceedings. The procedures to be followed in the
department for assessment is well settled. Thus, the
authorities competent are not expected to commit
such jurisdictional errors in a routine manner. In
these circumstances, review of such orders by the
higher authorities are imminent to form an opinion
that there is any willful or intentional act for
commission of such jurisdictional errors, enabling
the assesses to get exonerated from the liability.
Liability and jurisdictional errors are distinct
factors, and therefore, Courts are expected to
provide an opportunity to the Department to
decide the liability on merits and in accordance
with law with reference to the provisions of the Act
and Rules and guidelines issued by the
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WP Nos.18913 and 18914 of 2013
Department.
18.Large number of writ petitions are filed
without exhausting the statutory appeal remedies
and High Court is also entertaining such writ
petitions in a routine manner. Keeping such writ
petitions pending for long time would cause
prejudice to the interest of the assessee also. Thus,
such statutory provisions regarding the appeal are
to be decided at the first instance, enabling the
litigants to avail the remedy by following the
procedures as contemplated under law. Such writ
petitions are filed may be on the ground of
jurisdiction or otherwise. However, the Courts are
expected to ensure that all such legal grounds
available to the parties are adjudicated before the
proper Forum and only after exhausting the
statutory remedies, writ petitions are to be
entertained. In the absence of exhausting such
remedies, High Court is loosing the benefit of
deciding the matter on merits as the High Court
cannot conduct a trial or examine the original
records in the writ proceedings under Article 226
of the Constitution of India. Thus, the Courts shall
not provide an unnecessary opportunity to the
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WP Nos.18913 and 18914 of 2013
assessee to escape from the liability merely on the
ground on jurisdictional error, which is
rectifiable.”
15. The power of judicial review under Article 226 of the
Constitution of India is to ensure that the processes through which a
decision is taken by the Competent Authority in consonance with the
provisions of the Act, but not the decision itself. This being the principles to
be adopted while entertaining a writ petition, this Court is of the considered
opinion that the factual disputes now raised, including the legal grounds are
to be adjudicated before the Tribunal in these writ petitions.
16. The learned Senior Counsel, appearing on behalf of the
petitioner, contended that the writ petitions were admitted in the year 2013
and are pending for about 7 years and therefore, the petitioner need not be
relegated again before the Appellate Authority. This Court is of the
considered opinion that this practice of admitting the writ petition and
keeping the same pending is unavoidable and at one point, the High Court
has to settle the principles in the matter of exhausting the appellate remedy.
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WP Nos.18913 and 18914 of 2013
If such practices are allowed, then every litigant will take advantage of such
circumstances or efflux of time.
17. The consistency and uniformity in exercising the appeal
remedy before approaching the High Court is to be developed both in the
interest of the aggrieved person as well as in the interest of the institutions.
Institutional respects are also to be protected by the High Court. Thus, this
Court is of an opinion that mere pendency cannot be a ground for preferring
an appeal and the High Court in such circumstances may take a lenient view
by condoning the delay in preferring an appeal, if any arises. This being the
principles to be considered, this Court is of an opinion that the petitioner
has to approach the Tribunal in order to adjudicate the disputed facts as well
as the legal grounds raised in these writ petitions.
18. Accordingly, the petitioner is at liberty to prefer an appeal
before the Jurisdictional Appellate Authority in the prescribed format and
by complying with the provisions of the Act and the Rules, within a period
of 60 days from the date of receipt of a copy of this order. The Appellate
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WP Nos.18913 and 18914 of 2013
Authority, in the event of receiving any appeal from the petitioner, shall
consider the same on merits and in accordance with law and by affording an
opportunity to the writ petitioner and dispose of the appeal as expeditiously
as possible.
19. With the above directions, the writ petitions stand disposed
of. However, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
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Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
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To
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WP Nos.18913 and 18914 of 2013
1.The Secretary,
State of Tamil Nadu
Ministry of Finance,
Secretariat,
Fort St. George,
Chennai-600 009.
2.Joint Commissioner (CT)-I,
32(123) Dugar Towers,
Marshal Road,
Egmore,
Chennai-600 008.
3.Joint Commissioner (CT)-Appeals,
Commercial Taxes Annexe Building,
III Floor, Greams Road,
Chennai-600 006.
4.Deputy Commissioner (CT)-I,
32(123) Dugar Towers,
Marshal Road,
Egmore,
Chennai-600 008.
S.M.SUBRAMANIAM, J.
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WP Nos.18913 and 18914 of 2013
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WPs 18913 and 18914 of 2009
24-08-2021
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