Madras High Court
M/S.Kurlon Limited vs The Commercial Tax Officer on 31 August, 2023
W.P. No.10819 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.08.2023
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P. No.10819 of 2021
and
W.M.P. Nos.11446 and 11447 of 2021
M/s.Kurlon Limited,
Represented by its Manager,
No.194, Pycrofts Road,
Royapettah, Chennai-600 014. ... Petitioner
Vs.
The Commercial Tax Officer,
Thiruvallikeni Assessment Circle,
Chennai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorari calling for the records of the
Respondent in its proceedings in TIN: 33160680798/2013-14, quash the
assessment order dated 03.03.2021 passed therein.
For Petitioner : Mr.C.Baktha Sironmani
For Respondents : Ms.Amrita Dinakaran
Government Advocate
1/8
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W.P. No.10819 of 2021
ORDER
The writ petition was filed challenging the orders of assessment
dated 03.03.2021. The question that was raised during the course of
assessment initially related to the rate of tax on the sale of Polyurethane
Foams.
2. It was submitted by the learned counsel for the petitioner that the
Commissioner issued a clarification vide ACAAR No.15 / 2012-13 dated
02.12.2014 stating that Polyurethane Foam is plastic good falling under
Entry 13 of Part-C of First Schedule of the Tamil Nadu Value Added Tax,
2006 (hereinafter referred to as "TNVAT Act") liable to tax at 14.5% by
virtue of Notification No.II(1)/CTR/12(R-20)/2011 in G.O.Ms.No.78,
Commercial Taxes and Registration (B2) Department dated 11.07.2011
reduce the rate of tax at 5% on Polyurethane Foam w.e.f. 12.07.2011. The
relevant portion of the order reads as under:
"9...
The Polyurethane Foam is a plastic good, liable to tax at reduced
rate of 5%, as per Entry in Sl.No.13 in the list of goods, which are
normally taxable at 14.5% under Part-C of First Schedule, under
Notification No.II(1)/CTR/12(R-20)/2011 in G.O.Ms.No.78, Commercial
Taxes and Registration (B2) Department dated 11.07.2011, brought into
effect from 12.07.2011."
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W.P. No.10819 of 2021
2.1. It is submitted by the learned counsel for the petitioner that any
levy of tax at 14.5% would be contrary to the clarification which is binding
on the assessing officer.
3. To the contrary, it was submitted by the learned counsel for the
respondents that though the rate of tax may be 5%, the impugned orders of
assessment only proceeded on the premise that the petitioner collected tax at
14.5% on the sale of Polyurethane Foam and had not remitted the tax so
collected and thus the impugned order was passed invoking Section 40(1) of
the TNVAT Act which provides that no registered dealer shall make any
such collection except in accordance with the provisions of this Act and the
Rules made thereunder. It was submitted by the learned counsel for the
Respondents that no evidence is available nor submitted by the petitioner to
show that the excess tax collected was remitted to the State. Further, the
learned counsel for the respondents submitted that this is the third round of
litigation.
4. The learned counsel for the petitioner submitted that they have
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W.P. No.10819 of 2021
copies of invoice/documents to show that they have not collected tax at
14.5% and instead collected tax at 5% and the impugned order is contrary to
facts and thus unsustainable.
5. Whether tax was collected at 14.5% or 5% and remitted with the
State treasury is essentially a question of fact to be proved on the basis of
evidence and thus the appropriate remedy would only be before the
Appellate Authority.
6. It is trite law that adjudication of disputed questions of fact is
outside the purview of Article 226 of the Constitution of India. In this
regard, it may be relevant to refer to the following judgment of the Hon'ble
Supreme Court in the case of Thansingh Nathmal v. Supt. of Taxes, reported
in AIR 1964 SC 1419, wherein, 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. In para 7, the Court observed thus :
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W.P. No.10819 of 2021
“7. Against the order of the Commissioner an order for reference
could have been claimed if the appellants satisfied the Commissioner or
the High Court that a question of law arose out of the order. But the
procedure provided by the Act to invoke the jurisdiction of the High Court
was bypassed, the appellants moved the High Court challenging the
competence of the Provincial Legislature to extend the concept of sale,
and invoked the extraordinary jurisdiction of the High Court under Article
226 and sought to reopen the decision of the taxing authorities on
question of fact. The jurisdiction of the High Court under Article 226 of
the Constitution is couched in wide terms and the exercise thereof is not
subject to any restrictions except the territorial restrictions which are
expressly provided in the Articles. But the exercise of the jurisdiction is
discretionary : it is not exercised merely because it is lawful to do so. The
very amplitude of the jurisdiction demands that it will ordinarily be
exercised subject to certain self-imposed limitations. Resort to that
jurisdiction is not intended as an alternative remedy for relief which may
be obtained in a suit or other mode prescribed by statute. Ordinarily the
Court will not entertain a petition for a writ under Article 226, where the
petitioner has an alternative remedy, which without being unduly onerous,
provides an equally efficacious remedy. Again the High Court does not
generally enter upon a determination of questions which demand an
elaborate examination of evidence to establish the right to enforce which
the writ is claimed. The High Court does not therefore act as a court of
appeal against the decision of a court or tribunal, to correct errors of
fact, and does not by assuming jurisdiction under Article 226 trench upon
an alternative remedy provided by statute for obtaining relief. Where it is
open to the aggrieved petitioner to move another tribunal, or even itself in
another jurisdiction for obtaining redress in the manner provided by a
statute, the High Court normally will not permit by entertaining a petition
under Article 226 of the Constitution the machinery created under the
statute to be bypassed, and will leave the party applying to it to seek
resort to the machinery so set up.”
(emphasis supplied)
7. There can be no doubt that even though the High Court can
entertain a Writ Petition against any order or direction passed / action taken
by the State and / or its authorities under Article 226 of the Constitution of
India, it ought not to do so as a matter of course when the aggrieved person
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W.P. No.10819 of 2021
could have availed of an effective alternative remedy in the manner
prescribed by law.1
8. The learned counsel for the petitioner made a request seeking
liberty to file an appeal. In view of the same, the writ petition is dismissed,
liberty is granted to the petitioner to file an appeal within a period of 3
weeks from the date of receipt of a copy of this order. If appeal is filed
within 3 weeks from the date of receipt of a copy of this order, the Appellate
Tribunal shall admit the appeal without reference to limitation subject to
the compliance with other condition governing appeal. Registry is directed
to return the original copy of the impugned order to enable the petitioner to
file its appeal after retaining a photocopy of the impugned order. No costs.
Consequently, the connected miscellaneous petitions are closed.
31.08.2023
Speaking (or) Non Speaking Order
Index:Yes/No
Neutral Citation: Yes/No
mka
1Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [Baburam Prakash
Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556] and also Nivedita
Sharma v. COAI [Nivedita Sharma v. COAI, (2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947]
https://www.mhc.tn.gov.in/judis
W.P. No.10819 of 2021
To:
The Commercial Tax Officer,
Thiruvallikeni Assessment Circle,
Chennai.
https://www.mhc.tn.gov.in/judis
W.P. No.10819 of 2021
MOHAMMED SHAFFIQ, J.
mka
W.P. No.10819 of 2021
and
W.M.P. Nos.11446 and 11447 of 2021
31.08.2023
https://www.mhc.tn.gov.in/judis
