Madras High Court
M/S.Dlf Southern Homes Pvt Ltd vs The Assistant Commissioner (Ct) on 20 July, 2021
WP No.26731 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20-07-2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.26731 of 2015
M/s.DLF Southern Homes Pvt Ltd.,
Represented by its Authorised Signatory,
S.No.184/1, No.31, Thazhambur Village,
Navalur,
Kanchipuram District 603 103. .. Petitioner
vs.
The Assistant Commissioner (CT),
Chengalpattu Assessment Circle,
No.15-B, First Floor,
1st Main Road,
Anna Nagar,
Chengalpattu-603 001. .. Respondent
Writ Petition is filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorari, calling for the records
of the respondent in the impugned order TIN No.33160742587/2010-11
dated 22.07.2015, quash the same as it is contrary to the scheme of the VAT
system; arbitrary in nature and not in accordance with law laid down by this
Court in the case of ICMC Corporation Ltd vs. CESTAT [(2014) 302 ELT
1/8
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WP No.26731 of 2015
45] insofar as the petitioner is concerned.
For Petitioner : Mr.V.S.Manoj
For Respondent : Mr.P.Nanmaran,
Government Advocate.
ORDER
The assessment order passed by the respondent in proceedings
dated 22.07.2015, is under challenge in the present writ petition.
2. The impugned order itself reveals that a separate note is
provided wherein it is categorically stated “an appeal against this order lies
before the Appellate Deputy Commissioner of Commercial Taxes, Chennai
(South), Chennai-600 006, within 30 days of receipt of this order”. Instead
of preferring an appeal, the petitioner has chosen to file the present writ
petition.
3. The learned counsel, appearing on behalf of the petitioner,
reiterated that the judgments relied on by the petitioner are not considered by
the respondent and therefore, there is no deliberation in respect of merits
placed by the petitioner.
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WP No.26731 of 2015
4. The learned counsel for the petitioner raised certain grounds on
merits and with reference to the transactions and the principles laid down, this
Court is of the considered opinion that all mixed question of facts and law are
to be decided by the Appellate Authorities by considering the documents in
original and the evidences to be produced by the respective parties.
5. 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
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WP No.26731 of 2015
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.
6. 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
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WP No.26731 of 2015
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.
7. 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.
8. In view of the fact that the litigants sometimes are adopting a
tactical approach in a calculated manner by prolonging and protracting the
proceedings, the Authorities are expected to be cautious. Undoubtedly, the
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WP No.26731 of 2015
judgments produced by the litigants are to be considered with reference to the
facts and circumstances as well as the documents and the evidences.
9. However, the litigants as well as the learned counsel are expected
to be precise in their submissions, enabling the Authorities/Courts to decide the
matter as expeditiously as possible. Contrarily, on the same point, if they have
produced numerous judgments and prolonged the issue, the same will not do
any service to the cause of justice. Thus, it is to be noted that the respective
litigants and the counsel appearing on behalf of the parties are to be precise in
their submissions and submit the judgments, which all are most aptly suitable
to establish their case, enabling the Authorities/Courts to consider the same.
10. This Court is of the considered opinion that on certain number of
hundreds of judgments may be produced. However, the same would not be of
any assistance to the Authorities or the Courts, to deal with all such judgments
by forming an opinion and for passing orders. These all are the aspects, which
all are to be borne in mind by the litigants as well as the respective learned
counsel appearing on behalf of the parties.
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WP No.26731 of 2015
11. Therefore, this Court is of the considered opinion that the
judgments, which all are apt, are to be referred and relied upon for the purpose
of establishing their case and the facts in brief, are to be precise, in enabling the
Authorities/Courts to decide the matter as expeditiously as possible.
12. In the present case, the importance of appellate remedy and its
necessity are yet to be considered by this Court and therefore, the petitioner
has to prefer an appeal and redress his grievance in the manner known to law.
13. In this view of the matter, the petitioner is at liberty to prefer
an appeal in the prescribed format and by complying with the provisions of
the Act and the Rules, within a period of four weeks from the date of receipt
of a copy of this order. In the event of any such appeal, the Appellate
Authority shall condone the delay, if any, taking into consideration the
period of pendency of the appeal 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.
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WP No.26731 of 2015
S.M.SUBRAMANIAM, J.
Svn
14. With the above directions, the writ petition stands disposed of.
However, there shall be no order as to costs.
20-07-2021
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
To
The Assistant Commissioner (CT),
Chengalpattu Assessment Circle,
No.15-B, First Floor,
1st Main Road,
Anna Nagar,
Chengalpattu-603 001.
WP No.26731 of 2015
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