Madras High Court
M/S.V.R.Muthu & Bros vs The State Tax Officer on 15 November, 2021
W.P.(MD)Nos.20182 to 20185 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)Nos.20182 to 20185 of 2021
and
W.M.P.(MD)Nos.16876 to 16879 of 2021
M/s.V.R.Muthu & Bros.,
Rep. by its Partner,
No.443, Main Bazaar,
Virudhunagar. ... Petitioner in all Writ Petitions
Vs.
The State Tax Officer-1,
Virudhunagar Assessment Circle,
Virudhunagar. ... Respondent in all Writ Petitions
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Certiorari, calling for the records of
the respondent in his proceedings in TN VAT Asst.Nos.
33645720460/2011-12, 2012-13, 2013-14 & 2014-15, quash the
assessment orders dated 28.09.2021 passed therein.
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For Petitioner : Mr.R.L.Ramani
Senior Counsel
for Mr.S.Raja Jeya Chandra Paul
For Respondent : Mr.M.Lingadurai
Special Government Pleader
[In all Writ Petitions]
COMMON ORDER
*********************
Captioned main writ petitions have been filed assailing four
separate revisional orders all dated 28.09.2021 made under
Section 27 of 'the Tamil Nadu Value Added Tax Act, 2006 (Tamil
Nadu Act No.32 of 2006)' [hereinafter 'TN VAT Act', for the sake of
brevity, convenience and clarity].
2.These four revisional orders have been assailed in the
captioned four writ petitions and therefore, the same shall be
referred to as 'impugned orders' collectively. The impugned orders
pertain to four successive assessment years namely 2011-12,
2012-13, 2013-14 & 2014-15.
3.Mr.R.L.Ramani, learned Senior Advocate appearing on
behalf of Counsel on record for the writ petitioner in all the four
writ petitions ie., Mr.S.Raja Jeya Chandra Paul submitted that the
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four impugned orders are identical, the issues are common and the
matters can be taken up together.
4.Before I proceed further, it is made clear that I notice that
this is the third round of litigation in the first tier qua revisional
assessment under TN VAT Act.
5.Short facts ie., short facts or in other words essential facts
imperative for appreciating this order and the trajectory the matter
has taken is as follows:
a) The writ petitioner is a wholesale
distributor of gingelly oil, groundnut oil, refined
sesame oil, mustard oil etc., manufactured by
the writ petitioner's parent company V.V.V. &
Sons Edible Oils Ltd., Virudhunagar.
b) The writ petitioner is a dealer under TN
VAT Act. There was assessment under TN VAT
Act.
c) Post assessment there was a VAT
Enforcement Audit under Section 64(4) of TN
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VAT Act and the audit team inter alia noticed
three defects ie., the sale price is lesser than the
purchase price (Defect-1), writ petitioner dealer
had not paid tax on sale for 2011-12 in the
monthly returns (Defect-2) and Form-H under
Rule 6(3)(a) of the Rules under TN VAT Act had
not been produced (Defect-3).
d) Thereafter, pre-revision notices were
issued for the four assessment years on
11.05.2018. The same were challenged before
this Court vide W.P.(MD)Nos.11991 to 11994 of
2018. These four writ petitions were disposed of
by a Hon'ble Single Judge on 04.03.2021 inter
alia permitting an additional show cause notice
to be issued. This order was carried in appeal by
way of intra Court appeals and Hon'ble Division
Bench disposed of the four writ appeals ie., W.A.
(MD)Nos.910 to 913 of 2021 in and by a
common order dated 28.04.2021, interfering
with the order of the Hon'ble Single Judge and
saying that in cases of this nature, production of
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books of accounts is necessary and fresh notices
have to be issued.
e) Pursuant to the aforesaid order of the
Hon'ble Division Bench fresh notices were issued
on 14.07.2021 which met with atleast four
letters dated 30.07.2021, 03.08.2021,
05.08.2021 and 09.08.2021 seeking extension of
time to respond. Ultimately objections for the
four assessment years along with purchase and
sales statements were filed on 27.08.2021.
Thereafter, pre-revision notices were issued for
the four assessment years all dated 03.09.2021.
These 03.09.2021 pre-revision notices (four in
number) were assailed by the writ petitioner by
way of four writ petitions being W.P.(MD)Nos.
17985 to 17988 of 2021 and all these four writ
petitions came to be dismissed by another
Hon'ble Single Judge on 04.10.2021 inter alia on
the ground that the revisional assessment orders
had been passed ie., the impugned orders in the
captioned matters.
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f) The above order of the Hon'ble Single
Judge dated 04.10.2021 was carried in appeal by
way of intra Court appeals (four appeals) and
another Hon'ble Division Bench of this Court
dismissed all four writ petitions by a common
order dated 28.10.2021 holding that there is no
infirmity in the pre-revisional notices dated
03.09.2021 and making it clear that it is open to
the writ petitioners to assail the assessment
orders (impugned orders in captioned matters in
an appropriate forum). Thereafter, the captioned
four writ petitions have been filed.
g) The three defects pointed out by the
VAT audit team has already been set out supra.
In this regard, it is to be noted that the main
issue in the captioned matters is sale price being
lesser than purchase price which warrants
reversal of Input Tax Credit (ITC) under Section
19(20) of TN VAT Act. In this regard, it is to be
noted that the validity of Section 19(20) of TN
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VAT Act was assailed in a batch of writ petitions
(to be noted writ petitioner also assailed the
same) but the same came to be conclusively
decided by the Hon'ble Supreme Court in Jayam
& Co. Vs. Assistant Commissioner reported
in 96 VST Page 1. Hon'ble Supreme Court
upheld the validity of Section 19(20) of TN VAT
Act which provides for reversal of ITC in cases
where the sale price is lesser than the purchase
price.
6.In his campaign against the impugned orders in the
admission board today, learned Senior Counsel made the following
submissions:
a) 03.09.2021 pre-revisional notices were
not served on the writ petitioner dealer on
04.10.2021 when the orders were made in W.P.
(MD)Nos.17985 to 17988 of 2021.
b) To respond to 14.07.2021 notice, the
writ petitioner dealer sought for time till first
week of February but without waiting till first
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week of February, the pre-revisional notices
came to be issued on 03.09.2021 and when the
same were challenged the impugned orders
were hurriedly made on 28.09.2021 and the
same were despatched on a Sunday on
03.10.2021 at 07.00 p.m. in the evening.
c) The books of accounts have to be
produced. Earlier Division Bench order makes
it clear that books of accounts have to be
looked into and it also points out besides
holding that the assessment officer is an
independent authority who is not bound by the
proposals made by the VAT audit team and
therefore some more time need to be given for
producing all the books of accounts.
d) There is a reference to writ petitioner's
objection dated 27.08.2021 in the impugned
orders but the same has not been considered.
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7.Mr.M.Lingadurai, learned Special Government Pleader
accepted notice on behalf of the lone respondent.
8.Owing to the narrow compass on which the captioned
matter turns, main writ petitions were taken up with the consent of
both sides.
9.Learned Revenue Counsel ie., learned State Counsel
[Special Government Pleader] made submissions which are as
follows:
a) The argument turning on 03.09.2021 pre-
revisional notices cannot be used now as the same has
been conclusively decided by a common order dated
28.09.2021.
b) It cannot be stated that adequate opportunity
has not been given as the impugned orders make it
clear that the writ petitioner instead of producing
books of accounts and other records for verification as
directed by the Hon'ble High Court has filed only
details which are already available with the
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department. However, further opportunity was given
to the writ petitioner and all these have been
captured in the impugned orders. The most relevant
portion of the impugned order reads as follows:
'In response to this office notice 4th
cited, the dealer has requested time to
produce the books of accounts till the first
week of September – 2021 vide their letter
dated 30.07.2021 and as requested by the
dealer time was granted to produce the
books of accounts. In the meanwhile the
dealer vide their letter dated
27.08.2021 had filed a reply
contending that during the year
2011-12 their taxable sales turnover
after discount is always higher than
that of their taxable purchases and
that they had paid tax after availing
input tax credit every month during the
year 2011-12 and hence there was no
room for reversal of Input Tax Credit
under Section 19(20). They also filed a
statement of purchase and sales for the
year 2011-12. The details are already
available in the monthly returns filed
by the dealer with the department.
Instead of producing the book of
accounts and other records before me
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for verification as directed by the
Honourable High Court, the dealer has
filed only the details which are already
available with the department. Thus the
dealer without producing the book of
accounts and other records as directed by
the Hon'ble High Court, has simply
requested time to drag on the issue
indefinitely, which clearly shows that the
dealer has no correct and complete
accounts to substantiate their claim. Even
though the dealer not produced the book of
accounts and other relevant records, in the
interest of justice, time is given as
requested by the dealer. But, even after
lapse of time as requested by the dealer i.e.
up to 03.09.2021, the dealer had not
produced the books of accounts as
requested vide their letter dated
30.07.2021.'
[Extracted and reproduced as such]
[Emphasis supplied in bold font for ease of reference]
c) The writ petitioner has an effective and
efficacious alternate remedy by way of an appeal
under Section 51 of TN VAT Act as the impugned
orders are revisional orders under Section 27.
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10.The sheet-anchor submission of learned Senior Counsel is
if one more opportunity is given to the writ petitioner dealer, the
writ petitioner dealer would now produce the books of accounts
and the matter can be given a quietus by passing revisional orders
afresh.
11.I now proceed to consider the rival submissions, discuss
the same and give my dispositive reasoning for the conclusion
which has ultimately been arrived at infra.
12.The first point turns on 03.09.2021 pre-revisional notices.
As rightly pointed out by learned Revenue Counsel, this matter
cannot be gone into by this Court. This is a matter of judicial
discipline. The 03.09.2021 pre-revisional notices were challenged
by the writ petitioner dealer by way of four writ petitions ie., W.P.
(MD)Nos.17985 to 17988 of 2021 and all the four writ petitions
were dismissed by a common order by another Hon'ble Single
Judge. This 04.10.2021 order was carried in appeal by way of four
intra Court appeals and a Hon'ble Division Bench has dismissed all
the four writ appeals by a common order dated 28.10.2021. This
Court deems it appropriate to scan and reproduce the entire order
of the Hon'ble Division Bench and the same is as follows:
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13.Learned Senior Counsel on instructions submitted that the
writ petitioner dealer is not carrying the aforementioned order of
Hon'ble Division Bench to Hon'ble Supreme Court. In other words
legal quietus is being given to the above order is his say. Under
such circumstances, it is a matter of judicial discipline that even
arguments touching upon challenge to pre-revisional notices being
dismissed by another Hon'ble Single Judge cannot be gone into by
me sitting as a Single Judge.
14.This takes us to the second facet of the argument which
turns on adequacy of opportunity. A careful perusal of the
aforementioned trajectory makes it clear that an earlier Division
Bench by order dated 28.04.2021, made two things clear and they
are -
a) The assessment officer is an independent entity who is not
bound by the proposal made by the VAT Audit Team.
b) The books of accounts have to be looked into in cases of
this nature viz., where 19(20) ITC reversal on account of sale price
being lesser than purchase price arises.
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15.It is pursuant to above that 14.07.2021 notices were
issued by the respondent which met with repeated requests for
extension of time followed by some material being placed before
the respondent after which the pre-revisional notices came to be
issued challenge to which failed before the Single Judge whose
order has now been confirmed by a Hon'ble Division Bench.
Therefore, in this view of the matter, reliance placed on Emcee
Chemicals Vs. The Registrar, Tamil Nadu Taxation Special
Tribunal in W.P.Nos.8766 to 8768 of 2000 ie., Emcee
Chemicals case principle to say how the assessing officer should
proceed which has been reiterated in the subsequent 28.04.2021
order of Hon'ble Division Bench is now not available to the writ
petitioner. Much water has flown under the bridge as already
alluded to supra and the matter now rests on the last of the orders
made by the Hon'ble Division Bench being order dated 28.10.2021
which has been scanned and reproduced in its entirety.
16.I now proceed to examine the next argument which turns
on non-consideration of the objections of the writ petitioner dated
27.08.2021. The argument is, the objections have been referred to
in the impugned orders but the same have not been considered. A
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careful perusal of the impugned orders reveal that it has not been
referred to in all the impugned orders but in any event, the
impugned orders deal with objections that have been raised by the
dealer. The correctness or otherwise of the conclusions arrived at
vide the impugned orders will have to be tested only in an appeal
ie., in a statutory appeal under Section 51 of TN VAT Act. One of
the reasons for this is, the matter turns heavily on facts and the
appellate authority under Section 51 of TN VAT Act can also look at
the books of accounts and come to a conclusion with regard to the
points that are being urged. In this regard, I also find that Hon'ble
Division Bench in its order dated 28.10.2021, more particularly in
paragraph Nos.6 & 7 thereat, while giving liberty to the writ
petitioner dealer to challenge the impugned order has used the
term 'forum' and has said that the 'forum' shall consider the
challenge. Therefore, this may also be a pointer to the position that
the reference is to appellate authority. However, I am not making
this order solely on this point. This has been mentioned as only one
of the buttressing factors. To be noted the aforementioned
arguments which were raised in the hearing notwithstanding very
many averments and several grounds in writ affidavit and the
counter points made by the learned Revenue Counsel have been
considered in this order.
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17.This takes me to the alternate remedy plea. There is no
disputation or disagreement that alternate remedy is available to
the writ petitioner by way of a statutory appeal under Section 51 of
TN VAT Act. The alternate remedy rule no doubt is not an absolute
rule. In other words, the alternate remedy rule is a rule of
discretion. It is not only a rule of discretion, it is a self restraint
qua writ jurisdiction. In the light of this obtaining legal position,
Hon'ble Supreme Court in a long line of judgments ie., Dunlop
India case [Assistant Collector of Central Excise, Chandan
Nagar, West Bengal Vs. Dunlop India Ltd., and others
reported in (1985) 1 SCC 260], Satyawati Tandon [United
Bank of India Vs. Satyawati Tondon and others reported in
(2010) 8 SCC 110] and K.C.Mathew [Authorized Officer,
State Bank of Travancore and another Vs. Mathew K.C.
reported in (2018) 3 SCC 85] has repeatedly held that when it
comes to Revenue matters [ie., fiscal Statutes] alternate remedy
rule has to be applied with utmost rigour. These three case laws
mentioned here do not make a exhaustive list, they are only
illustrative and what I have mentioned are oft quoted judgments for
the proposition that alternate remedy rule has to be applied with
utmost rigour in fiscal Statutes.
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18.Relevant paragraph in Dunlop India case is paragraph
No.3 and the same reads as follows:
''3. ....... Article 226 is not meant to short-
circuit or circumvent statutory procedures. It is
only where statutory remedies are entirely ill-
suited to meet the demands of extraordinary
situations, as for instance where the very vires
of the statute is in question or where private or
public wrongs are so inextricably mixed up and
the prevention of public injury and the
vindication of public justice require it that
recourse may be had to Article 226 of the
Constitution. But then the Court must have
good and sufficient reason to bypass the
alternative remedy provided by statute. Surely
matters involving the revenue where statutory
remedies are available are not such matters.
We can also take judicial notice of the fact that
the vast majority of the petitions under Article
226 of the Constitution are filed solely for the
purpose of obtaining interim orders and
thereafter prolong the proceedings by one
device or the other. The practice certainly
needs to be strongly discouraged.'
(Underlining made by this Court
to supply emphasis and highlight)''
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19.Relevant paragraph in K.C.Mathew case is paragraph
No.10 and the same reads as follows:
'10. In Satyawati Tondon the High Court had
restrained further proceedings under Section 13(4)
of the Act. Upon a detailed consideration of the
statutory scheme under the SARFAESI Act, the
availability of remedy to the aggrieved under
Section 17 before the Tribunal and the appellate
remedy under Section 18 before the Appellate
Tribunal, the object and purpose of the legislation, it
was observed that a writ petition ought not to be
entertained in view of the alternate statutory
remedy available holding: (SCC pp.123 & 128, Paras
43 & 55)
“43. Unfortunately, the High Court
overlooked the settled law that the High
Court will ordinarily not entertain a
petition under Article 226 of the
Constitution if an effective remedy is
available to the aggrieved person and that
this Rule applies with greater rigour in
matters involving recovery of taxes, cess,
fees, other types of public money and the
dues of banks and other financial
institutions. In our view, while dealing with
the petitions involving challenge to the
action taken for recovery of the public
dues, etc., the High Court must keep in
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mind that the legislations enacted by
Parliament and State Legislatures for
recovery of such dues are a code unto
themselves inasmuch as they not only
contain comprehensive procedure for
recovery of the dues but also envisage
constitution of quasi-judicial bodies for
redressal of the grievance of any aggrieved
person. Therefore, in all such cases, the
High Court must insist that before availing
remedy under Article 226 of the
Constitution, a person must exhaust the
remedies available under the relevant
statute.
55.It is a matter of serious concern
that despite repeated pronouncement of
this Court, the High Courts continue to
ignore the availability of statutory
remedies under the DRT Act and the
SARFAESI Act and exercise jurisdiction
under Article 226 for passing orders which
have serious adverse impact on the right of
banks and other financial institutions to
recover their dues. We hope and trust that
in future the High Courts will exercise their
discretion in such matters with greater
caution, care and circumspection.'
(underlining made by this Court to
supply emphasis and highlight)'
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20. To be noted in paragraph No.10 of K.C.Mathew case, the
Satyawati Tondon case law has been extracted, reproduced and
reiterated and therefore, I deem it appropriate not to burden this
order with extracts from Satyawati Tondon case.
21.I find that the above proposition applies in all fours to the
case on hand as the matter does not fall under any of the
exceptions to the alternate remedy rule. To be noted, the
exceptions have been adumbrated in the oft quoted Whirlpool
Corporation case [Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and others reported in (1998) 8 SCC 1].
This has come to stay in litigation parlance as Whirlpool
exceptions. More importantly, in a very recent judgment a three
member Bench of the Hon'ble Supreme Court in Civil Appeal No.
5121 of 2021 [The Assistant Commissioner of State Tax and
Others Vs. M/s. Commercial Steel Limited] vide dated
03.09.2021 culled out the exceptions and held that interference in
writ jurisdiction should be only in exceptional cases and
adumbrated the exceptions. The relevant paragraphs in
Commercial Steel case are paragraph Nos.11 & 12 and the same
reads as follows:
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'11. The respondent had a statutory
remedy under section 107. Instead of availing of
the remedy, the respondent instituted a petition
under Article 226. The existence of an alternate
remedy is not an absolute bar to the
maintainability of a writ petition under Article
226 of the Constitution. But a writ petition can
be entertained in exceptional circumstances
where there is: (i) a breach of fundamental
rights; (ii) a violation of the principles of natural
justice; (iii) an excess of jurisdiction; or (iv) a
challenge to the vires of the statute or
delegated legislation.
12. In the present case, none of the above
exceptions was established. There was, in fact,
no violation of the principles of natural justice
since a notice was served on the person in
charge of the conveyance. In this backdrop, it
was CA 5121/2021 7 not appropriate for the
High Court to entertain a writ petition. The
assessment of facts would have to be carried
out by the appellate authority. As a matter of
fact, the High Court has while doing this
exercise proceeded on the basis of surmises.
However, since we are inclined to relegate the
respondent to the pursuit of the alternate
statutory remedy under Section 107, this Court
makes no observation on the merits of the case
of the respondent.'
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22.A careful perusal of the aforesaid paragraphs make it
clear that none of the aforesaid exceptions are attracted in the case
on hand. If at all and if that be so, the closest one can come to is
NJP [Natural Justice Principle] violation. The trajectory the matter
has taken has been clearly set out supra in this order which makes
it clear that there is no NJP violation. The Hon'ble Division Bench
also in its 28.10.2021 order, more particularly in paragraph No.6
thereat has clearly observed that the respondent had given
sufficient opportunity to the appellant to submit their explanation
and however for the reasons best known to the appellant the
appellant chose to seek for some more time. As the entire order of
Hon'ble Division Bench has been reproduced, I would not venture
into elaborating further. Suffice to say that this has been clearly
captured in paragraph No.6 of the order of Hon'ble Division Bench
dated 28.10.2021.
23.The narrative thus far, discussion and dispositive
reasoning set out supra draws the curtains on the captioned four
writ petition. In other words, the campaign of the writ petitioner
qua the impugned orders in the captioned four writ petitions fail
and the writ petitions are dismissed albeit making it clear that if
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the writ petitioner chooses the alternate remedy route and files
statutory appeals, the same will be considered (subject of course to
limitation and pre-deposit condition) by the appellate authority on
its own merits and in accordance with law.
24.As a concluding remark, this Court also makes it clear (as
already alluded to supra elsewhere in this order) that this is the
third round of litigation in the first tier of tax assessment and
therefore, this Court is of the view that it is time that the dealer
moves on to the appellate authority which is also an authority
which can go into facts including examination of books of accounts.
25.Ergo, all four captioned Writ Petitions are dismissed albeit
preserving the rights of the writ petitioner in the aforesaid manner.
Consequently, captioned Writ Miscellaneous Petitions are also
dismissed. There shall be no order as to costs.
15.11.2021
Index : Yes / No
Internet: Yes / No
MR
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NOTE: In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct copy,
shall be the responsibility of the
advocate/litigant concerned.
To
The State Tax Officer-1,
Virudhunagar Assessment Circle,
Virudhunagar.
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M.SUNDAR., J.
MR
ORDER MADE IN
W.P.(MD)Nos.20182 to 20185 of 2021
15.11.2021
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