Madras High Court
Tvl. Bidhisha Sri Builders vs The Assistant Commissioner (St) on 8 March, 2022
WA.Nos.476 & 477 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.03.2022
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE J. SATHYA NARAYANA PRASAD
W.A.Nos.476 & 477 of 2022
&
CMP.Nos.3430, 3434 and 3439 of 2022
Tvl. Bidhisha Sri Builders
represented by its Proprietor
A.Karmegam,
No.18-B, Markabandhu Street,
Peramanur, Salem-7 . . . Appellant in
both appeals
Versus
The Assistant Commissioner (ST),
Salem Town North Circle,
Salem . . . Respondent in
both appeals
Writ Appeals filed under clause 15 of Letters Patent against the common
order passed by the learned Judge in W.P.Nos.2077 & 2079 of 2019 and
WMP.Nos.2327 and 2330 of 2019 dated 25.08.2021.
For Appellant : Mr.R.Senniappan
For Respondent : Mr.Venkateswaran
Special Government Pleader
https://www.mhc.tn.gov.in/judis
WA.Nos.476 & 477 of 2022
COMMON JUDGMENT
(Judgment of the court was delivered by R.Mahadevan, J.)
Both the writ appeals arise from the order dated 25.08.2021 passed by the
learned Judge in WP.Nos.2077 and 2079 of 2019, which were filed by the
appellant / assessee against the assessment orders dated 09.11.2018 passed by
the respondent, relating to the assessment years 2015-16 and 2016-17.
2.By the order impugned herein, the learned Judge, based on the request
made by the learned counsel for the appellant, has dismissed the said writ
petitions granting liberty to the appellant to prefer statutory appeals under
section 51 of the TNVAT Act, subject to limitation and pre-deposit as mandated
under the statute.
3.At the outset, the learned counsel for the appellant submitted that the
circumstance under which the letter of withdrawal had been sent at the time of
hearing, was unavoidable and the opportunity for contending the merit of the
case, has not been utilised by the appellant and therefore, the present writ
appeals are filed seeking one more opportunity to defend their claim. The
learned counsel also raised several contentions questioning the orders passed by
the respondent / assessing officer.
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WA.Nos.476 & 477 of 2022
4.However, this court is not inclined to entertain these writ appeals, as the
appellant themselves sought leave of this court to withdraw the writ petitions,
with liberty to prefer statutory appeals before the appellate authority and in view
of the same, the learned Judge dismissed the writ petitions as withdrawn.
5.1. That apart, it is settled law that writ is an extraordinary remedy not
ordinarily entertained, when there are alternative remedies available. In other
words, the proceedings under Article 226 of the Constitution of India is clearly a
rule of discretion and it is a self imposed restraint. The Hon'ble Supreme Court
has repeatedly held that in fiscal statutes, this rule of restraint has to be applied
with utmost rigour. In this context, in Assistant Collector of Central Excise,
Chandan Nagar, West Bengal v. Dunlop India Ltd. and others [(1985) 1 SCC
260], it was observed by the Supreme Court 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
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WA.Nos.476 & 477 of 2022
thereafter prolong the proceedings by one device or the other. The practice
certainly needs to be strongly discouraged.”
5.2. Reiterating the principle laid down in the decision in United Bank
of India v. Satyawati Tondon and others [(2010) 8 SCC 110], the supreme
court in Authorized Officer, State Bank of Travancore and another v. Mathew
K.C. [(2018) 3 SCC 85] held 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 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
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WA.Nos.476 & 477 of 2022
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.”
Therefore, in view of the availability of alternate remedy, the contentions raised
on the side of the appellant, cannot be taken into consideration by this court.
6.In such view of the matter, the writ appeals deserve to be dismissed and
are accordingly, dismissed. The appellant is granted four weeks time from the
date of receipt of a copy of this judgment, for filing appeals before the appellate
authority. No costs. Consequently, connected miscellaneous petitions are closed.
The original copy of the order passed by the respondent, if any, filed along with
the writ petitions/writ appeals, be returned to the learned counsel for the
appellant forthwith.
(R.M.D., J.) (J.S.N.P., J.)
08.03.2022
msr/gba
Internet : Yes / No
To
The Assistant Commissioner (ST),
Salem Town North Circle,
Salem
https://www.mhc.tn.gov.in/judis
WA.Nos.476 & 477 of 2022
R. MAHADEVAN, J.
and
J.SATHYA NARAYANA PRASAD, J.
msr/gba
W.A.Nos.476 & 477 of 2022
08.03.2022
https://www.mhc.tn.gov.in/judis
