Madras High Court
M/S.Nithya Sizing And Weaving ... vs The Assistant Commissioner (Ct) ... on 5 July, 2021
W.P.Nos.7029 to 7033 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.7029 to 7033 of 2013
and
M.P.No.1 of 2013 (In each W.P.)
M/s.Nithya Sizing and Weaving Mills,
3/267, Nithya Garden, Annur Road,
Karumathampati Via Kittampalayam,
Tiruppur District. .. Petitioner in
all W.Ps.
-vs-
1.The Assistant Commissioner (CT) (FAC),
Tiruppur Central II Circle,
Tiruppur.
2.The Joint Commissioner (Enf) (CT),
Coimbatore-641 018.
3.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai-600 005. .. Respondents in
all W.Ps.
Petitions filed under Article 226 of the Constitution of India praying
for issuance of Writ of Certiorari to call for the records of the proceedings
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W.P.Nos.7029 to 7033 of 2013
of the respondent in TIN: 33212461836/2007-08, 33212461836/2008-09,
33212461836/2009-10, 33212461836/2010-11 and 33212461836/2011-12
dated 31.01.2013 and quash the same.
For Petitioner : Mr.M.Hariharan
(In all W.Ps.)
For Respondent : Mr.V.Veluchamy,
(In all W.Ps.) Government Advocate
******
COMMON ORDER
These writ petitions are filed challenging the revised assessment
orders dated 31.01.2013, passed under Section 25 of the Tamil Nadu Value
Added Tax Act, 2006 (hereinafter referred to as “the TNVAT Act”) for the
assessment years 2007-08 to 2011-12.
2.The learned counsel for the petitioner mainly contended that the
Assessing Officer has failed to consider the circular issued by the
Government granting exemption and further, no opportunity of personal
hearing was provided. Thus, the petitioner could not able to defend his case
properly by producing the circular and judgments in this regard.
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W.P.Nos.7029 to 7033 of 2013
3.This Court is of the considered opinion that certain disputed facts,
application of Government Orders and grant of exemptions are to be
considered with reference to the provisions of the TNVAT Act as well as
the Government Orders in force. It requires an adjudication based on the
documents and evidences to be produced by the respective parties. The
decisions regarding grant of tax exemption and application of certain
provisions with reference to the facts cannot be considered in a writ
proceedings under Article 226 of the Constitution of India. A deliberation
is required and the power of judicial review under Article 226 is to
scrutinize the processes through which a decision is taken by the competent
authority to arrive a decision, but not the decision itself. Thus, an
adjudication is required based on the mere affidavit and counter affidavit
filed by the parties. Such an adjudication cannot be done in a writ
proceedings. This apart, appeal provisions are contemplated under the
statute in order to redress the grievances of the assessees. The powers of the
appellate authority, at no circumstances, be undermined and the assessees
are also entitled to avail the benefit of appeal for complete adjudication of
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W.P.Nos.7029 to 7033 of 2013
facts, as the appellate authority is the final fact finding authority. Thus, they
are empowered to correct the factual mistakes, if any, committed by the
original authority or application of legal provisions as well as the
Government Orders in force. Therefore, appellate remedy to be exhausted
cannot be waived in a routine manner. The findings made by the original
authority as well as the appellate authority would be of greater assistance to
the High Court for the purpose of exercise of powers of judicial review
under Article 226 in an effective manner. Appellate provisions are enacted
with an intention to resolve the factual disputes in its entirety with reference
to the records. This being the legislative intention, preferring an appeal is
the rule and entertaining a writ is an exemption. A writ may be entertained,
if any damage is caused to a litigant, which cannot be compensated or there
is an urgency for grant of any such relief and not otherwise. The litigants
are advised to raise the principles of natural justice in many cases only for
the purpose of maintaining a writ petition. However, the Courts are bound
to look into the nature of the violations for the purpose of exhausting the
appellate remedy contemplated.
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W.P.Nos.7029 to 7033 of 2013
4.The learned counsel for the petitioner relied on the orders passed by
this Court on 03.03.2021 in W.P.Nos.30225 to 30231 of 2015 wherein, this
Court remanded the matter back to the original authority.
5.The learned Government Advocate for the respondents disputed the
grounds raised by the petitioner by stating that the facts in the said case are
different and therefore, remand need not be granted.
6.These writ petitions are filed in the year 2013 and are pending for
the past seven years. Under these circumstances, this Court is of an opinion
that for the purpose of personal hearing, the matter need not be remanded
back.
7.Accordingly, the petitioner is at liberty to prefer an appeal to the
appellate authority under the provisions of the TNVAT Act in the
prescribed format within a period of four weeks from the date of receipt of a
copy of this order and on receipt of any such appeal from the petitioner, the
appellate authority shall dispose of the same as expeditiously as possible on
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W.P.Nos.7029 to 7033 of 2013
merits and in accordance with law and by affording opportunity to the
petitioner.
With the above observations, these writ petitions stand disposed of.
No costs. Consequently, connected miscellaneous petitions are closed.
05.07.2021
Index : Yes
Speaking Order
abr
To
1.The Assistant Commissioner (CT) (FAC),
Tiruppur Central II Circle,
Tiruppur.
2.The Joint Commissioner (Enf) (CT),
Coimbatore-641 018.
3.The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk,
Chennai-600 005.
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W.P.Nos.7029 to 7033 of 2013
S.M.SUBRAMANIAM, J.
(abr)
W.P.Nos.7029 to 7033 of 2013
05.07.2021
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