Madras High Court
M/S.Vinoth Agencies vs The Commercial Tax Officer on 9 July, 2021
W.P. No.22700 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.22700 of 2011
& M.P.No.1 of 2011
M/s.Vinoth Agencies,
Represented by its Proprietor,
No.32/3, Tiruvellore Road,
Uthukottai 602 026. ..Petitioner
Vs.
The Commercial Tax Officer,
Thiruvellore Assessment Circle,
Thiruvellore. ..Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari to call for the impugned proceedings of the
respondent issued in TIN33221720217/2009-10 dated 21.04.2011 and
quash the same as the addition of the income received from the vendors
through credit notes to the sales turnover of the petitioner and the tax levied
on the same is untenable in law and also without jurisdiction.
For Petitioner : Mr.P.Rajkumar
For Respondent : Mr.V.Veluchamy
(Government Advocate)
1/10
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W.P. No.22700 of 2011
ORDER
The Revised proceedings of the Commercial Tax Officer for the
year 2009-10 in the matter of deviation of proposal is under challenge in the
present Writ Petition.
2.The petitioner is dealer in cement, pesticides, seeds and
fertilizers and registered dealer on the file of the respondent, under the
provisions of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter
referred to as, 'the TNVAT Act') and under the Central Sales Tax Act, 1956
(hereinafter referred to as, 'the CST Act'). The petitioner filed his monthly
returns for the Assessment Years 2007-08, 2008-09 and 2009-10, declaring
the total and taxable turnovers for the Assessment Years based on sales
invoices issued and also indicating the Input Tax Credit availed/adjusted
towards VAT liability for the year.
3.The petitioner states that once the Assessment Year is over, then
it is mandatory that the Assessing Officer has to accept the returns as such
and pass an order on self assessment basis in accordance with Section 22(2)
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W.P. No.22700 of 2011
of the TNVAT Act. In respect of the Assessment Year 2007-08, the original
assessment order under Section 22(2) of the TNVAT Act was passed on
12.04.2010. In respect of the Assessment Year 2008-09, the original
assessment order under Section 22(2) of the TNVAT Act was passed on
16.04.2010. In respect of the Assessment Year 2009-10, the same was
passed on 13.01.2011.
4.The petitioner was issued with a notice stating that the
authorities have proposed to revise the accounts of the dealer for respective
Assessment Years under Section 27(1)a of the TNVAT Act, 2006. The
petitioner was provided with an opportunity to submit its objections for the
proposal for reversing the accounts of the dealer. The petitioner submitted
their objections and thereafter, the impugned order has been passed in the
present case. The impugned order of rejection of deviation of proposal is
under challenge in the present Writ Petition. The deviation was made
pursuant to the inspection conducted by the Enforcement Wing of the
Commercial Taxes Department, in the business premises of the petitioner.
This being the factum, this Court is of the considered opinion that the order
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W.P. No.22700 of 2011
impugned dated 21.04.2011, which is appealable is to be taken by way of an
appeal by the petitioner before competent appellate authority. Admittedly,
the petitioner has not preferred an appeal and has chosen to file the present
Writ Petition.
5.This Court is of the considered opinion that the impugned order
reveals that the petitioner was originally under the TNVAT Act. The total
and taxable turn over of Rs.5,78,40,317/- and Rs.1,43,57,393/-. The
Enforcement Official, in their report dated 03.11.2010, stated that the
income of Rs.5,52,685/- through credit notes and taxable @ 12.5%.
Pursuant to the report of the Enforcement Officials, the competent authority
determined to revise the assessment and the said assessment is made based
on the files as well as the inspection conducted. Verification of the files,
reports, etc., cannot be done by this Court with reference to the original
proceedings, which is impugned in the present Writ Petition. If all any
discrepancy or errors or non-adherence of the principles settled by the
Courts, the petitioner is bound to prefer an appeal. The appellate authority is
the final fact finding authority. More specifically in the present case, the
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W.P. No.22700 of 2011
impugned order has been passed pursuant to the report submitted by the
Enforcement Wing of the Commercial Tax Department. Thus, verification of
the original records are vital for the purpose of deciding the issues and such
an exercise cannot be done by the High Court under Article 226 of the
Constitution of India. What is the business turn over determined by the
authorities and the dispute with reference to the issues are to be considered
with reference to the original files.
6.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
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W.P. No.22700 of 2011
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.
7.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.
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W.P. No.22700 of 2011
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.
8.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.
9.In view of the facts and circumstances, the petitioner is at liberty
to prefer an appeal to the appellate authority under the provisions of the Act,
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W.P. No.22700 of 2011
in the prescribed format and by complying with the provisions, within a
period of four weeks from the date of receipt of a copy of this order. In the
event of filing any appeal, the appellate authority shall condone the delay, if
any, and decide the issue on merits and in accordance with law, by affording
opportunity to the writ petitioner. The petitioner is at liberty to submit all
the documents, objections and the judgments relied upon, to the appellate
authority, enabling them to consider and pass final orders, as expeditiously
as possible.
10.With these directions, the Writ Petition stands disposed of. No
costs. Consequently, connected Miscellaneous Petition is closed.
09.07.2021
gsa (½)
Index : Yes
Speaking Order : Yes
Note: Registry is directed to handover
the original impugned order to
the learned counsel on record.
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W.P. No.22700 of 2011
To
The Commercial Tax Officer,
Thiruvellore Assessment Circle,
Thiruvellore.
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W.P. No.22700 of 2011
S.M.SUBRAMANIAM, J.
gsa
W.P.No.22700 of 2011
09.07.2021
(½)
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