Madras High Court
The Commissioner Of Commercial ... vs Tvl.Bharath Traders on 1 December, 2022
W.A.(MD)Nos.1613 of 2021 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.12.2022
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.A.(MD) Nos.1613, 2213, 2218 to 2220 and 2252 of 2021, 129,
170, 183, 184, 201, 202, 206 and 207, 1147 to 1151 of 2022
and
C.M.P.(MD) Nos.6928, 10940, 11013 to 11015, 11247 of 2021, 1274
1700, 1771, 1772, 1957, 1960, 1989, 1990, 9036 to 9038, 9040,
9039 of 2022
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Commercial Tax Officer,
South Avani Moola Street Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
Madurai – 625 020. ... Appellants/Respondents
in W.A.(MD) No.1613 of 2021
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Assistant Commissioner (CT),
Tamil Sangam Road Assessment Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
1/18
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1613 of 2021 etc., batch
Madurai. ... Appellants/Respondents
in W.A.(MD) Nos.2213 of 2021
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Commercial Tax Officer,
South Avani Moola Street Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
Madurai – 625 020. ... Appellants/Respondents
in W.A.(MD) No.2213 of 2021
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Commercial Tax Officer,
Paramakudi Assessment Circle,
Commercial Taxes Building,
No.3/103, Madurai Mandapam Main Road,
Thirunagar, Theligathanallur,
Paramakudi,
Ramnad District. ... Appellants/Respondents
in W.A.(MD) Nos.2218 to
2220 & 2252 of 2021
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Assistant Commissioner (CT),
Tamil Sangam Salai Circle,
2/18
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1613 of 2021 etc., batch
Commercial Tax Building,
Dr.Thangaraj Salai, K.K.Nagar,
Madurai – 625 020. ... Appellants/Respondents
in W.A.(MD) Nos.129 and
130 of 2022
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Assistant Commissioner,
Srirangam Assessment Circle,
Commercial Tax Complex,
District Court Campus,
Cantonment,
Trichy – 628 008. ... Appellants/Respondents
in W.A.(MD) Nos.170 of 2022
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Commercial Tax Officer,
Nanguneri Assessment Circle,
No.12, Main Bazaar, Nanguneri,
Thirunelveli District – 627 108. ... Appellants/Respondents
in W.A.(MD) Nos.183 & 184
of 2022
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Assistant Commissioner,
Thirumangalam Assessment Circle,
15/91, Sonaiyar Street,
3/18
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W.A.(MD)Nos.1613 of 2021 etc., batch
Jawahar Nagar,
Thirumangalam. ... Appellants/Respondents
in W.A.(MD) Nos.201, 202,
206 and 207 of 2022
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Commercial Tax Officer,
III (ADDL) Commercial Taxes Buildings,
Madurai Road, Near VVV College,
Virudhunagar – 626 001. ... Appellants/Respondents
in W.A.(MD) Nos.1147 to
1151 of 2022
Vs.
Tvl.Bharath Traders,
Represented by its Partner,
N.Venkatesh, aged about 34 years,
No.3, Sappani Koil Street,
South Veli Street,
Madurai – 625 001. ... Respondent/Writ Petitioner
in W.A.(MD) Nos.1613 of 2021
Tvl.R.V.D.Tools House,
Represented by its Proprietor,
R.V.D.Ramaiah,
S/o.V.Duraisamy,
Nos.202 and 203, Thilagar Thidal,
Tamilsangam Road,
Madurai – 625 001. ... Respondent/Writ Petitioner
in W.A.(MD) Nos.2213 of 2021
Tvl.Veyil Vantha Ambal & Co.,
Represented by its Proprietor,
V.P.M.Muthuvijayan,
S/o.M.Panjavarnam,
No.2/82, Thallakulam Road,
Paramakudi,
Ramanathapuram District – 623 707. ... Respondent/Writ Petitioner
4/18
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W.A.(MD)Nos.1613 of 2021 etc., batch
in W.A.(MD) Nos.2218 to
2220 of 2021
Tvl.Veyil Vantha Ambal & Co.,
Represented by its Proprietor,
V.P.M.Muthuvijayan,
S/o.M.Panjavarnam,
No.3/456-B, Madurai Mandapam Road,
Paramakudi,
Ramanathapuram District – 623 707. ... Respondent/Writ Petitioner
in W.A.(MD) No.2252 of 2021
Tvl.Techny Chemy,
Rep. by its Proprietrix,
Sasikala Ravi,
No.24 – Patel Street,
Ayyappa Nagar,
Trichy – 21. ... Respondent/Writ Petitioner
in W.A.(MD) No.170 of 2022
Tvl.Olive Enterprises,
Represented by its Proprietrix,
A.Esther Rani,
No.38, Nadarkudiruppu,
Zion Hill, Kovankulam,
(Via) Parappadi,
Tirunelveli District – 627 151. ... Respondent/Writ Petitioner
in W.A.(MD) Nos.183 and 184
of 2022
Tvl.Srinivasa Marine Chemicals,
Represented by its Proprietor,
S.Ayyanan, aged about 59 years,
No.239/2D, Vadakarai Village,
Malakottai, Thirumangalam,
Madurai District – 625 706. ... Respondent/Writ Petitioner
in W.A.(MD) Nos.201 and 202
of 2022
Tvl.East Coast Seaweed Inc,
Represented by its Proprietrix,
A.Mahalakshmi, W/o. Ayyanan,
No.19/50, Veeran Street,
Thirumangalam,
5/18
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W.A.(MD)Nos.1613 of 2021 etc., batch
Madurai District – 625 706. ... Respondent/Writ Petitioner
in W.A.(MD) Nos.206 and 207
of 2022
A.M.N.Mariappan ... Respondent/Writ Petitioner
in W.A.(MD) Nos.1147 to
1151 of 2022
Prayer: Writ Appeals filed under Clause 15 of Letters Patent,
praying to set aside the common order dated 30.08.2019 made in
W.P.(MD) Nos.15103 of 2015, 16518 of 2017, 12644 to 12646,
12643 of 2016, 18191, 21907, 21104, 21105 and 11425 to 11428 of
2016, 7821, 7819, 7823, 7822, 7820 of 2015 and to allow the
appeals.
For Appellants all the : Mr.G.V.Vairam Santhosh
Writ Appeals Additional Government Pleader
For Respondent in W.A. : Mr.V.Rooban
(MD) Nos. 1613, 2218 to
2220 and 2252 of 2021,
129, 170, 183, 184, 201,
202, 206, 207 and 1147
to 1151 of 2022
For Respondent in W.A. : Mr.A.Chandrasekaran
(MD) No.2213 of 2021
***
COMMON JUDGMENT
(Judgment of the Court was delivered by R.MAHADEVAN, J.)
These writ appeals have been filed by the
Revenue, assailing the common order dated 30.08.2019 passed by
the learned Judge in W.P.(MD) Nos.15103 of 2015, 16518 of 2017,
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W.A.(MD)Nos.1613 of 2021 etc., batch
12644 to 12646, 12643 of 2016, 18191, 21907, 21104, 21105 and
11425 to 11428 of 2016, 7821, 7819, 7823, 7822, 7820 of 2015,
holding that the proviso to Section 19 (2) (v) of the Tamil Nadu
Value Added Tax Act, 2006 (in short, “the TNVAT Act”) inserted by
section 2(1) of the Tamil Nadu Value Added Tax (Fifth Amendment)
Act No.28 of 2013 with effect from 11.11.2013 is not applicable to
the manufacturers and allowing the writ petitions.
2. Mr.G.V.Vairam Santhosh, learned Additional
Government Pleader is appearing for the appellants in these Writ
Appeals and Mr.Rooban, learned counsel in W.A.(MD) Nos.1613,
2218 to 2220 and 2252 of 2021, 129, 170, 183, 184, 201, 202, 206,
207 and 1147 to 1151 of 2022 and Mr.A.Chandrasekaran, learned
counsel in W.A.(MD) No.2213 of 2021 appearing for the
respondents.
3. Today, when the case was taken up for consideration, the
learned Additional Government Pleader appearing for the
appellants and the learned counsel for the respondents submitted
that the issue involved herein has already been considered by
judgment dated 31.03.2022 passed in W.A.No.1260 of 2017
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W.A.(MD)Nos.1613 of 2021 etc., batch
etc. batch (The State of Tamil Nadu, Rep. by its Secretary,
Commercial Taxes Department v. M/s.Everest Industries
Limited) and hence, this writ appeal may be disposed of in the
same lines.
4. The conclusive portion of the judgment dated 31.03.2022
made in W.A.No.1260 of 2017 etc. batch, reads as follows:-
“Conclusion:
147. Therefore, the position as regards
section19(2)(ii) and the proviso inserted vide Act 28 of
2013 and its subsequent omission vide Amendment Act 5
of 2015 and the claim of refund, shall be examined in the
light of the principles as set out above. To that extent,
the appeals filed by the State are partly allowed.
148. Insofar as W.A Nos.1446 and 1447/2021
are concerned, the same have been preferred against the
orders of the learned Judge dismissing the writ petitions
as barred by limitation, based on the decision of the Apex
Court in Glaxo Smith Kline Consumer Health Care Pvt
Ltd.
149. It is brought to the knowledge of this
court, a subsequent judgment of a Co-ordinate Bench of
this court in W.A No.493/2021, wherein after considering
the observations of the Hon?ble Apex Court, it was held
that “no bar has been imposed by the Apex Court in
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W.A.(MD)Nos.1613 of 2021 etc., batch
entertaining a writ petition under Article 226 of the
Constitution of India? and the same is quoted below for
ready reference:
?5. In our respectful view, the decision of
the Hon-ble Supreme Court in the said decision has
not held that a writ petition under Article 226 of the
Constitution of India is an absolute bar. We are of
the said view after noting the observations/findings
rendered by the Hon-ble Supreme Court in the
following paragraphs :
?11. In the backdrop of these facts,
the central question is: whether the High
Court ought to have entertained the writ
petition filed by the respondent? As regards
the power of the High Court to issue
directions, orders or writs in exercise of its
jurisdiction under Article 226 of the
Constitution of India, the same is no more res
integra. Even though the High Court can
entertain a writ petition against any order or
direction passed/action taken by the State
under Article 226 of the Constitution, it ought
not to do so as a matter of course when the
aggrieved person could have availed of an
effective alternative remedy in the manner
prescribed by law (see Baburam Prakash
Chandra Maheshwari vs. Antarim Zila
Parishad now Zila Parishad, Muzaffarnagar
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W.A.(MD)Nos.1613 of 2021 etc., batch
[AIR 1969 SC 556] and also Nivedita Sharma
vs. Cellular Operators Association of India &
Ors. [2011 (14) SCC 337]. In Thansingh
Nathmal & Ors. vs. Superintendent of Taxes,
Dhubri & Ors. [AIR 1964 SC 1419], the
Constitution Bench of this Court made it
amply clear that although the power of the
High Court under Article 226 of the
Constitution is very wide, the Court must
exercise self imposed restraint and not
entertain the writ petition, if an alternative
effective remedy is available to the aggrieved
person.....
15. ........ The High Court may accede
to such a challenge and can also non suit the
petitioner on the ground that alternative
efficacious remedy is available and that be
invoked by the writ petitioner. However, if the
writ petitioner chooses to approach the High
Court after expiry of the maximum limitation
period of 60 days prescribed under Section 31
of the 2005 Act, the High Court cannot
disregard the statutory period for redressal of
the grievance and entertain the writ petition
of such a party as a matter of course. Doing so
would be in the teeth of the principle
underlying the dictum of a three Judge Bench
of this Court in Oil and Natural Gas
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W.A.(MD)Nos.1613 of 2021 etc., batch
Corporation Limited (supra). In other words,
the fact that the High Court has wide powers,
does not mean that it would issue a writ which
may be inconsistent with the legislative intent
regarding the dispensation explicitly
prescribed under Section 31 of the 2005 Act.
That would render the legislative scheme and
intention behind the stated provision
otiose. ......
19........ Pertinently, no finding has
been recorded by the High Court that it was a
case of violation of principles of natural
justice or non compliance of statutory
requirements in any manner. Be that as it
may, since the statutory period specified for
filing of appeal had expired long back in
August, 2017 itself and the appeal came to be
filed by the respondent only on 24.9.2018,
without substantiating the plea about inability
to file appeal within the prescribed time, no
indulgence could be shown to the respondent
at all.?
6. On a reading of the above extracted
paragraphs, it is seen that the Hon-ble Supreme
Court, after referring to the decision of the
Constitution Bench in the case of Thansingh
Nathmal, held that although the power of the High
Court under Article 226 of the Constitution is very
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W.A.(MD)Nos.1613 of 2021 etc., batch
wide, the Court must exercise self imposed restraint
and not entertain the writ petition. Further, in
paragraph 15, the Hon-ble Supreme Court observed
that the High Court may accede to such a challenge
and can also non suit the petitioner on the ground
that alternative efficacious remedy is available and
that be invoked by the writ petitioner. In addition, in
paragraph 19, the Hon'ble Supreme Court took note
of the fact that when the High Court refuses to
exercise the jurisdiction under Article 226 of The
Constitution of India, it would be necessary for the
Court to record that there was no case of violation of
the principles of natural justice or non-compliance of
statutory requirements in any manner.
7. Therefore, there are certain broad
parameters, within which, the Court has to exercise
its jurisdiction under Article 226 of The Constitution
of India, which read as hereunder :
(i) if there is unfairness in the action of the
Statutory Authority;
(ii) if there is unreasonableness in the
action of the Statutory Authority;
(iii) if perversity writs large in the action
taken by the Authority;
(iv) if the Authority lacks jurisdiction to
decide the issue and
(v) if there has been violation of the
principles of natural justice, the Court will step in
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W.A.(MD)Nos.1613 of 2021 etc., batch
and exercise its jurisdiction under Article 226 of The
Constitution of India.
8. Further, it would be highly beneficial to
refer to the celebrated decision of the Constitution
Bench of the Hon-ble Supreme Court in the case of
Mafatlal Industries Ltd. Vs. Union of India [reported
in 1997 (5) SCC 536] wherein it was held that the
jurisdiction of the High Courts under Article 226 and
that of the Hon'ble Supreme Court under Article 32
of The Constitution of India could not be
circumscribed by the provisions of the Enactment
(Central Excise Act) and they would certainly have
due regard to the legislative intent evidenced by the
provisions of the Act and would exercise their
jurisdiction consistent with the provisions of the Act.
Further, the Court directed that the writ petition
would be considered and disposed of in the light of
and in accordance with the provisions of Section 11B
of the Central Excise Tax Act and for such a reason,
the power under Article 226 of The Constitution of
India has to be exercised to effectuate rule of law
and not for abrogating it.
9. In the light of the above, we have no
hesitation to hold that the observation of the learned
Single Judge to the effect that there is absolute bar
for entertaining a writ petition does not reflect the
correct legal position. Hence, we are inclined to
interfere with the observation made in the impugned
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W.A.(MD)Nos.1613 of 2021 etc., batch
order.?
150. With utmost respect, the Hon?ble
Supreme Court has held that such writs should not be
entertained as a matter of course, even though, the court
has wide powers under Article 226 of the Constitution.
The writ court ought to have seen that the High Court
under Article 226 of Constitution is rather circumscribed
by the theory of laches and not by limitation, because the
Constitution is above a statute as held by the Apex Court
in the Judgment in the matter of Samjuben Gordhanbhai
Koli Vs State of Gujarat, reported in
MANU/SC/0826/2010. The effect of ?laches? depends
upon the facts of each case and is left to the discretion of
the court to either reject or entertain a writ petition. In
taxing matters, whenever a levy or demand is made
without authority of law, the court would be within its
power to set aside the same, because any illegality
cannot be perpetuated on technicalities. Further, as per
the provisions of the TNVAT Act, Section 84 empowers
rectification of orders within five years from the date of
any order passed by the assessing officer. It is settled law
that the error contemplated therein is not just factual,
but also legal error. When the power to the statutory
authority is granted upto five years to modify the order,
it cannot be said that the constitutional authorities would
not have power to review the action. Therefore,
concurring with the Division Bench, we do not concur
with the decision of the Learned Judge to dismiss the
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W.A.(MD)Nos.1613 of 2021 etc., batch
writ petitions on the technicality of limitation, that too,
when the batch was pending. We set aside the said order
of the learned Judge and dispose of the writ appeals in
WA.Nos.1446 and 1447/2021 accordingly.
151. In view of the fact that the batch of
cases has been partially decided in favour of the
assessees and partially in favour of the revenue, the writ
petitioners are disposed of, in terms of the ratio laid
down by this court.
152. With respect to W.P No 24535 of 2018,
the same is disposed of, granting liberty to the petitioner
to file an appeal before the appellate authority within a
period of 30 days from the date of receipt of a copy of
this order as the only ground raised therein is that the
challenge to the vires of the Act was pending before the
Apex Court, which subsequently was held in favour of
the Revenue.
153. In the upshot, the appeals filed by the
Revenue and the appeals and writ petitions filed by the
assessees are partially allowed. There will be no order as
to costs. Consequently, connected miscellaneous
petitions are closed.”
5. In view of the above, these writ appeals are
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1613 of 2021 etc., batch
disposed of, in terms of the earlier judgment of this Court dated
31.03.2022 in W.A.No.1260 of 2017 etc. batch. No costs. Connected
miscellaneous petitions are closed.
[R.M.D., J.] [J.S.N.P., J.]
01.12.2022
Internet : Yes / No
Index : Yes / No
sj
To
1.The Commissioner of Commercial Taxes,
O/o. The Principal and Special Commissioner
of Commercial Taxes.
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Commercial Tax Officer,
South Avani Moola Street Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
Madurai – 625 020.
3.The Assistant Commissioner (CT),
Tamil Sangam Road Assessment Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
Madurai.
4.The Commercial Tax Officer,
South Avani Moola Street Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
Madurai – 625 020.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1613 of 2021 etc., batch
5.The Commercial Tax Officer,
Paramakudi Assessment Circle,
Commercial Taxes Building,
No.3/103, Madurai Mandapam Main Road,
Thirunagar, Theligathanallur,
Paramakudi,
Ramnad District.
6.The Assistant Commissioner,
Srirangam Assessment Circle,
Commercial Tax Complex,
District Court Campus,
Cantonment,
Trichy – 628 008.
7.The Commercial Tax Officer,
Nanguneri Assessment Circle,
No.12, Main Bazaar, Nanguneri,
Thirunelveli District – 627 108.
8.The Assistant Commissioner,
Thirumangalam Assessment Circle,
15/91, Sonaiyar Street,
Jawahar Nagar,
Thirumangalam.
9.The Commercial Tax Officer,
III (ADDL) Commercial Taxes Buildings,
Madurai Road, Near VVV College,
Virudhunagar – 626 001.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1613 of 2021 etc., batch
R.MAHADEVAN, J.
and
J.SATHYA NARAYANA PRASAD, J.
sj
W.A.(MD) Nos.1613, 2213, 2218 to 2220 and 2252 of 2021, 129,
170, 183, 184, 201, 202, 206 and 207, 1147 to 1151 of 2022
01.12.2022
https://www.mhc.tn.gov.in/judis
