Madras High Court
Tvl. Jayalakshmi & Co vs The State Of Tamil Nadu on 9 July, 2021
W.P. No.27180 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.27180 of 2012
& M.P.No.1 of 2012
Tvl. Jayalakshmi & Co.,
Represented by its Partner,
P.Selvakumar,
S.F.No.68/345, Madavi Road,
Essanai, Perambalur District. ..Petitioner
Vs.
1.The State of Tamil Nadu,
rep. By the Secretary to Government,
Commercial Taxes & Registration Department,
Fort St.George, Chennai.
2.The Assistant Commissioner (C.T.),
Ariyalur Assessment Circle (FAC),
Ariyalur. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, calling for the records on the files of the 2nd
respondent in TN.Entry Tax Asst.1/2005-2006/(TNGST.3602066/2005-
2006) dated 31.08.2012 and quash the same as being contrary to the
principle laid down by this Court in the judgment reported in (2008) 13 VST
1/8
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W.P. No.27180 of 2012
390 (Mds) (R.Gandhi Vs. State of Tamil Nadu and others) and that of the
principle laid down by this Court in the judgment reported in (2010) 27 VST
192 (State of Tamil Nadu Vs. Arihant Plastic House).
For Petitioner : Mr.R.Senniappan
For Respondents : Mr.V.Veluchamy
(Government Advocate)
ORDER
The order of assessment passed by the 2nd respondent, in
proceedings dated 31.08.2012, is under challenge in the present Writ
Petition.
2.The petitioner has chosen to file the present Writ Petition merely
relying on the principles laid down by this Court in the judgment reported in
2008 13 VST 390 (Madras) in the case of R.Gandhi Vs. Tamil Nadu and
others.
3.However, the fact remains that the impugned order is an
assessment order, which is an appealable one under the provisions of the
Act. Admittedly, the petitioner has not exhausted the statutory appeal
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W.P. No.27180 of 2012
remedy contemplated and this Court is of the considered opinion that with
reference to the disputed facts, an adjudication before the appellate authority
is of paramount importance. Exhausting the appeal is the rule to be
followed, as the appellate authority is the final fact finding authority. The
original proceedings passed by the competent authority cannot be tested by
the High Court, in view of the fact that the disputed facts are to be
considered with reference to the original files and the evidences filed. Such
an exercise cannot be done by the High Court and the trained officials,
including the appellate authority, must be allowed to exercise their power as
an appellate authority for the purpose of scrutinising the documents and
evidences and to make a finding in this regard. The findings of the appellate
authority would be of greater assistance to the High Court for the purpose of
exercise of the power of judicial review in an effective manner. Therefore,
the importance of exhausting the appellate remedy at no circumstances be
undermined. The legislative intention for providing an appeal in the statute
is to ensure that the grievances of the aggrieved persons are redressed by
following the procedures and by applying the principles laid down by the
Courts. When the appellate remedy is efficacious and the procedures are
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W.P. No.27180 of 2012
also contemplated, then the aggrieved persons need not be deprived of the
benefit of appeal for the purpose of redressing their grievances in
accordance with law.
4.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 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
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W.P. No.27180 of 2012
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.
5.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 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
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W.P. No.27180 of 2012
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.
6.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.
7.In view of the facts and circumstances, the petitioner is at liberty
to prefer an appeal, before the jurisdictional appellate authority, within a
period of four weeks from the date of receipt of a copy of this order, in the
prescribed format and complying with the provisions of the Acts and rules
and in the event of receiving any such appeal from the petitioner, the
appellate authority shall consider the same, on merits and in accordance
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W.P. No.27180 of 2012
with law, and pass final orders by affording opportunity to the writ
petitioner, as expeditiously as possible, and preferably, within a period of
three months thereafter.
With this direction, the Writ Petition stands disposed of. No costs.
Consequently, connected Miscellaneous Petition is closed.
09.07.2021
gsa
Index : Yes
Speaking Order : Yes
Note: Registry is directed to handover
the original impugned order to
the learned counsel on record.
To
1.The Secretary to Government,
State of Tamil Nadu,
Commercial Taxes & Registration Department,
Fort St.George, Chennai.
2.The Assistant Commissioner (C.T.),
Ariyalur Assessment Circle (FAC),
Ariyalur.
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W.P. No.27180 of 2012
S.M.SUBRAMANIAM, J.
gsa
W.P.No.27180 of 2012
09.07.2021
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