1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.07.2011 CORAM: THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P(MD)No.8198 of 2011 M/s.The Mehta Industries, 5-C, Sirukulam Road, Sivakasi. .. Petitioner Vs. The Commercial Tax Officer-I, Presently designated as The Assistant Commissioner)CT)-I, Sivakasi. .. Respondent PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, calling for the records of the respondent in TNGST No.5960221/2003-04, quash the order dated 30.03.2007 insofar as the disallowance of claim of concessional rate of tax and further direct him to assess at 3% on the turnover of Rs.2,75,350/- by accepting Form XVII declaration under Section 3(3) of the TNGST Act. For Petitioner : Mr.R.D.Ganesan For Respondent : Mr.TR.Janarthanam, Additional Govt. Pleader O R D E R This Writ Petition has been filed to quash the order of the respondent in TNGST No.5960221/2003-04, dated 30.03.2007 insofar as the disallowance of claim of concessional rate of tax and to direct him to assess at 3% on the turnover of Rs.2,75,350/- by accepting Form XVII declaration under Section 3(3) of the TNGST Act. 2. Heard Mr.R.D.Ganesan, learned counsel for the petitioner and Mr.TR.Janarthanam, learned Additional Government Pleader, who takes notice for the respondent. 3. By consent, the Writ Petition itself is taken up for final hearing. 4. This Writ petition has been filed challenging the assessment order issued on 30.03.2011 with a right to file an appeal before the Appellate Assistant Commissioner of Commercial Taxes, within thirty days. On going through the order under challenge and the affidavit filed in support of this Writ Petition, this Court is not inclined to accept the request of the petitioner to issue a Mandamus for the following reasons: (i) In the order under challenge, it is stated that the show-cause notice inviting objections was received by the dealer on 24.03.2007 and no objection has been filed and therefore, assessment order came to be passed. Therefore, at the first instance, the petitioner failed to respondent to the notice issued by the respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 (ii) In the affidavit filed in support of the Writ Petition, it is stated that the assessment order was served on an employee, who did not intimate the petitioner so as to file an appeal in time. But, the name of the employee has not been stated and in any event, the date on which the employee received the notice has also not been stated. (iii) Further, the petitioner states that he came to know recently about the service of the impugned order on the basis of the demand of tax by the authority. Even, the notice demanding tax has not been enclosed and the date has also not been specified. (iv) The affidavit filed in support of this Writ Petition, is vague and bereft of details. (v) The inordinate delay of more than four years has not been properly explained. 5. In the decision relied on by the petitioner in Sree Murugan Engineering Products v. Commercial Tax Officer, Coimbatore reported in [2006] 148 STC419(Mad), the circumstances under which the Court will exercise the power under Article 226 of the Constitution of India when there is an alternative remedy, was reiterated relying upon the Apex Court judgment in Sahnia v. Indian Oil Corporation Ltd. reported in [2003] 2 SCC 107, wherein it has been clearly held that the Writ jurisdiction is a discretionary remedy and the Court must consider the pros and cons of the case before it would choose to entertain a Writ Petition bypassing the alternative remedy. 6. In this case, there is no violation of principles of natural justice by the Authority and the factual plea raised by the petitioner could have been urged before the appellate authority, had the petitioner been more prudent in pursuing the matter. 7. This Court is not inclined to exercise its discretionary power by invoking Article 226 of the Constitution of India, in a clear case of laches on the part of the petitioner in prosecuting the matter, more particularly, by filing a vague affidavit, which does not contain reason as to why he failed to prosecute the matter in time. 8. In view of the above, this Writ Petition is dismissed. No Costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To The Commercial Tax Officer-I, Presently designated as The Assistant Commissioner)CT) - I, Sivakasi. +1 CC to Special Government Pleader (SR.No.24449) +1 CC to Mr.R.D.Ganesan, Advocate (SR.No.24111) W.P.(MD)No.8198 of 2011 22.07.2011 pm NSV/4.8.11/2P/4C https://hcservices.ecourts.gov.in/hcservices/