Madras High Court
M/S.India Cements Limited vs The Entertainment Tax Officer on 27 July, 2021
W.P.No.23521 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :27.07.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.23521 of 2012
and
M.P.No.1 of 2012
M/s.India Cements Limited,
Represented by General Manager
(Franchise Holder of India Premier League)
No.827, Dhun Building, Anna Salai,
Chennai – 600 002. ...Petitioner
Vs
The Entertainment Tax Officer,
Anna Salai – III Assessment Circle,
Model School Road,
Chennai – 600 006. ... Respondent
Prayer : Writ Petition filed Under Article 226 of the Constitution of India
to issue of Writ of Certiorari, to call for the records of the respondent in the
impugned assessment order TNET/IPL/A.S.III/01/2012-13 dated
13.08.2012 imposing Entertainment Tax on the complementary tickets
alleging that the petitioner has issued complementary ticket beyond
prescribed limit, quash the same as it is violative of Section 3(10) and
Section 4-J of the Tamil Nadu Entertainments Tax Act, 1939 and also
violative of principles of natural justice.
1/8
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W.P.No.23521 of 2012
For Petitioner : Mr.V.S.Manoj
For Mr.K.Vaitheeswaran
For Respondent : Mr.V.Veluchamy
Government Advocate
ORDER
The order dated 13.08.2012 passed by the original authority/first
respondent with reference to the assessment for the year 2012-13 is under
challenge in the present writ petition.
2. The learned counsel for the writ petitioner mainly contended that
no opportunity was provided to the writ petitioner to defend their case and
therefore, the Principles of Natural Justice has been violated. This apart, the
respondent has not followed the provisions of the Tamil Nadu
Entertainment Tax Act, while making assessment and the respondent have
committed patent irregularity in calculation of tax to be levied and thus, the
impugned order is to be quashed.
3. The learned counsel for the petitioner relied on the judgment of the
Hon'ble Division Bench of this Court in the case of Tvl.SRC Projects
Private Limited Vs. The Commissioner of Commercial Taxes in
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W.P.No.23521 of 2012
W.P.Nos.893 & 894 of 2008 dated 08.09.2008, stating that existence of an
alternative remedy does not oust the jurisdiction of a writ court under
Article 226 of the Constitution and therefore, the present case, where there
is violation of Principles of Natural Justice, the writ petition is to be
entertained.
4. The learned Government counsel appearing on behalf of the
respondent made a submission that the order impugned itself would reveal
that the petitioner was permitted to prefer an appeal before the Deputy
Commissioner (CT), Zone V, Chennai – 6, within a period of 30 days from
the date of receipt of a copy of the impugned order and therefore, the
petitioner has to exhaust the Appellate remedy before approaching this
Court and on this ground, the writ petition is liable to be rejected.
5. As rightly pointed out by the learned counsel for the petitioner that
mere existence of an alternate remedy ousted the jurisdiction of the writ
Court under Article 226 of the Constitution of India. There cannot be any
other opinion in respect of the legal proposition put forth by the petitioner.
However, whether the point of jurisdiction is as such warranting an
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W.P.No.23521 of 2012
interference is to be gone into by the Courts. The practice of filing the writ
petitions on the ground of jurisdiction and violation of Principles of Natural
Justice is common one and in every writ petition, such ground is taken by
the litigants. However, only if the adverse order is passed, assessing the tax
without even issuing a notice or otherwise, the Court has to remand the
matter back for fresh consideration. Regarding the jurisdictional aspect also,
the grounds are taken based on certain facts and circumstances. It is to be
borne in mind that such factual adjudications with reference to the
jurisdictional ground raised, can be very well adjudicated before the
Appellate authority. The Appellate authorities are exercising the quasi-
judicial power and they are empowered to adjudicate both the mixed
question of law and fact and all such grounds may be taken by the aggrieved
person before the Appellate authority. Contrarily, the High Court cannot
adjudicate such disputed facts, which is to be done with reference to the
original documents and evidences. In the event of venturing into an
adjudication of disputed facts, this Court is of an apprehension that there is
a possibility of error of omission, commission and may lead to unjust
advantage to any one of the parties to the lis. The adjudication of disputed
facts cannot be done by the High Court, merely based on the affidavits filed
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W.P.No.23521 of 2012
by the parties. Beyond the affidavits, scrutinization of original documents
and evidences, if required, examination of witnesses or otherwise are to be
done in the manner known to law and such an exercise can be done only by
the original authority or by the Appellate authority. The very legislative
intention to provide an appeal under the Statute is to ensure that the
aggrieved persons would get an opportunity for the redressal of their
grievances and this apart, the Appellate authority is the final fact finding
authority. The valuable right of appeal conferred to an aggrieved person
under a Statute need not be deprived by unnecessarily entertaining a writ
petition on disputed facts. Contrarily, the litigant would get an opportunity
to adjudicate these disputed facts. This apart, the writ petitions are filed
based on certain facts and circumstances and certain xerox copies of the
chosen documents are filed. The entire documents in original are to be
placed for complete adjudication.
6. This being the scope of the Appellate remedy, the importance of
the Appellate remedy, at no circumstances, be undermined and the
authorities, while exercising the quasi-judicial power, is expected to
consider both the facts as well as the legal grounds raised by the respective
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W.P.No.23521 of 2012
parties to the appeal and pass an order on merits and in an unbiased manner.
7. This being the scope of the Appellate remedy, the petitioner is now
raising certain facts, which all are relevant, were not considered. The
relevancy or otherwise with reference to the tax regime is to be undertaken
by the Appellate authority. Certain factual details as produced by the
petitioner are to be considered with reference to the documents in original.
8. This being the factum, the petitioner is at liberty to approach the
Appellate authority as mentioned in the order impugned, within a period of
four weeks from the date of receipt of a copy of this order and in the event
of receiving any such appeal, the Appellate authority shall entertain the
same, condone the delay and adjudicate the issues on merits and in
accordance with law and by affording opportunity to the writ petitioner and
dispose of the same as expeditiously as possible.
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W.P.No.23521 of 2012
9. With these directions, the writ petition stands disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
27.07.2021
Speaking order/Non-speaking order
Internet:Yes/No
Index : Yes/No
Kak
To
The Entertainment Tax Officer,
Anna Salai – III Assessment Circle,
Model School Road,
Chennai – 600 006.
https://www.mhc.tn.gov.in/judis/
W.P.No.23521 of 2012
S.M.SUBRAMANIAM, J.
Kak
W.P.No.23521 of 2012
27.07.2021
https://www.mhc.tn.gov.in/judis/
