IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-6-2008 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.2392 of 2008 & M.P.No.1 of 2008 W.P.No.2393 of 2008 & M.P.No.1 of 2008 W.P.No.13457 of 2008 & M.P.No.1 of 2008 M/s.Sujana Universal Industries Ltd., rep.by its Accounts Manager Mr.R.Sakthi Kumar, No.4, 8th Floor, Jhaver Plaza, 1-A, Nungambakkam High Road, Chennai - 600 034. ... Petitioner in all writ petitions Vs. The Deputy Commercial Tax Officer, Valluvarkottam Assessment Circle, Chennai. ... Respondent in all writ petitions PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the records on the file of the respondent in TNGST/1502597/04-05, dated 7.12.2007; TNGST/1502597/05-06, dated 24.12.2007; and TNGST/1502597/06-07, dated 29.4.2008 respectively and to quash the same insofar as the claim of 2nd sale exemption is concerned as illegal and contrary to law. For Petitioner : Mr.A.L.Somayaji, (in all WPs) Senior Counsel for Ms.R.Hemalatha For Respondent : Mr.R.Mahadevan, (in all WPs) Addl.Government Pleader (Tax) https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER By consent of the learned Senior counsel appearing for the petitioner as well as the learned Additional Government Pleader (Tax) appearing for the respondent, the writ petitions are taken up for final disposal even at the admission stage. 2. In W.P.No.2392 of 2008, the assessment order dated 7.12.2007 passed by the respondent to the tune of Rs.14,09,13,503/- including penalty is challenged. In W.P.No.2393 of 2008, the assessment order dated 24.12.2007 passed to the tune of Rs.27,74,19,671/- including penalty is under challenge. The assessment order dated 29.4.2008 to the tune of Rs.12,04,10,462/- including penalty is challenged in W.P.No.13457 of 2008. 3. In all the impugned orders, it is specifically stated that appeal against the said order can be filed before the Appellate Assistant Commissioner of Commercial Taxes-III, Chennai, within thirty days of receipt of the order. But the petitioner challenged the said assessment orders without availing the alternative remedy as stated in the impugned order on the ground that principles of natural justice is violated by the respondent while passing the impugned orders of assessment. 4. The case of the petitioner in all these petitions is that the petitioner is a Public Limited Company, incorporated under the Companies Act, 1956, registered on the file of the respondent both under the TNGST Act, 1959 and CST Act, 1956. The petitioner is having the registered office inside the state of Tamil Nadu at No.4, 8th Floor, Jhaver Plaza, 1A Nungambakkam High Road, Chennai-34, and head office at No.18, Nagarjuna Hills, Panjagutta, Hyderabad-82. According to the petitioner, it is engaged in the trading activity of iron and steels and also Padmini brand fans. It is claimed that during the course of the business, the petitioner company purchased iron and steels from the local registered dealers and claimed exemption on their second sales, within the state of Tamil Nadu. Insofar as the Padmini brand fans are concerned, petitioner received the same from its head office on stock transfer basis for further sales inside the state of Tamil Nadu and by paying tax at 12.5%. For the assessment year 2004-2005, petitioner reported total and taxable turnover of Rs.2,32,78,27,388/- and Rs.9,50,028/-; for the assessment year 2005-2006 Rs.4,45,32,01,369/- and Rs.75,97,766/-; and for the assessment year 2006-2007 Rs.1,75,44,33,672/- and Rs.92,65,65,269/- respectively. According to the petitioner, for the first sales effected during the assessment years to the tune of Rs.9,50,028/-, Rs.75,97,766/- and Rs.92,86,108/, petitioner paid 12% tax and for the remaining amount, petitioner claimed https://hcservices.ecourts.gov.in/hcservices/ exemption on the basis that second sale attracts exemption. The said exemption sought for was not accepted by the respondent contending certain irregularities in furnishing A9 returns and a notice was issued seeking objection. Again another notice dated 5.6.2006 was issued by the respondent stating that registration numbers of certain sellers were not furnished and the purchase value with regard to other sellers are to be furnished. The respondent also disallowed the stock transfer on the ground that the petitioner failed to furnish declaration on Form-F or transport document or agreement or copy of the list proposing levy of tax at 8% subject to the petitioner filing objections. 5. It is also stated in the affidavit that the petitioner's business premises was inspected by the officials of the Enforcement Wing on 3.11.2006 and 4.11.2006 and on inspection it was noticed that the petitioner has no godown facility at all and all purchases were effected from three dealers placed at Chengalpet. The subsequent sales made by the petitioner were also effected at Chengalpet. The Enforcement Wing also pointed out that the three dealers placed at Chengalpet from whom the petitioner effected purchases, did not have their telephone numbers in their respective invoices and the necessity and motive of the petitioner to buy goods at Chengalpet and subsequent sales at Chengalpet. Based on the inspection, a final notice dated 27.9.2007 was issued by stating that all purchases were made from bogus dealers, who never in fact existed and therefore the entire turnover pertaining to the claim of second sales exemption to the effect of Rs.2,32,00,51,305/- was proposed to be disallowed and the petitioner is liable to pay tax at 4%. Another revised notice was also issued on 26.11.2007 and the petitioner was called upon to file its objection. According to the petitioner, for the above said notices, objections were filed and it is further stated that the newly appointed consultant could not reply properly and therefore the respondent confirmed the proposal, by order dated 7.12.2007 demanding Rs.14,09,13,503/-; order dated 24.12.2007 demanding Rs.27,74,19,671/-; and order dated 29.4.2008 demanding Rs.12,04,10,462/- respectively, towards tax as well as penalty. According to the petitioner, the three dealers, who sold the iron and steels to the petitioner are having their registration and the finding given by the respondent that they are non-existent entities cannot be sustained. It is also stated in the affidavit that even assuming that the tax is not paid on first sale, the same cannot be the reason to demand tax from the petitioner, who is doing second sale. 6. The respondent has filed counter affidavit by stating that as against the assessment orders, which are impugned in these writ petitions, the dealer has got substantive remedy to prefer a statutory appeal, which is a creature of statute with legal sanctity. It is also pointed out in the counter affidavit that https://hcservices.ecourts.gov.in/hcservices/ when the facts are in dispute requiring enquiry on the basis of voluminous records, which are intricate in nature, it is open to the petitioner to challenge the orders of assessment before the Appellate Assistant Commissioner as stated in the impugned orders. It is further stated in the counter affidavit that for all pre- assessment notices, petitioner submitted reply and the said replies were duly considered before passing the impugned orders of assessment. The petitioner Company had not filed any concrete evidence for movement of goods such as lorry receipts and proof of payment. Even the suppliers transaction, their source of purchase, proof of payment were not made available for verification. The registration certificate of 'Future Tech Industries Limited, Chengalpet', was found bogus and therefore a finding was given that the petitioner company received iron and steel from undisclosed source or from their company's factory at Andhra Pradesh and fabricated the records to show as if they were second sales. Petitioner Company having claimed exemption from tax as second sales of a huge turnover of Rs.232.64 crores for the year 2004-2005; Rs.444.56 crores for the year 2005-2006; and Rs.174.51 crores for the year 2006-2007, the onus is upon the petitioner to prove that those transactions had already suffered tax. A finding is also given to the effect that the three seller companies did not pay any tax and therefore section 10(2) of the TNGST Act, 1959, mandates the petitioner, who is claiming exemption, to prove that the iron and steels sold by the petitioner was already subjected to tax. 7. Heard the learned Senior Counsel appearing for the petitioner Company as well as the learned Additional Government Pleader appearing for the respondent. 8. The learned Senior Counsel appearing for the petitioner Company submitted that even though appeal remedy before the Appellate Assistant Commissioner, is provided under the Act, the impugned orders of assessment having been passed in violation of principles of natural justice, petitioner is entitled to challenge the assessment orders in these writ petitions. The learned Senior Counsel cited some of the judgments of the Supreme Court and of this Court to sustain his contention that even without resorting to appeal remedy, the writ petition filed is maintainable. 9. The learned Additional Government Pleader submitted that adequate opportunity was given to the petitioner and if the petitioner has got any document to prove its case the same can be produced before the appellate authority, who will be in a position to render a finding. 10. There is no controversy with regard to the maintainability of the writ petition though alternative remedy is available, and it depends upon the facts of each case and it is a https://hcservices.ecourts.gov.in/hcservices/ rule of discretion/convenience. In this case, the facts are disputed by the respondent in the counter affidavit and records are to be perused to find out as to whether the three companies, who allegedly supplied iron and steels to the petitioner Company as second sale were in existence; any sale transaction was effected by the said three companies; whether the petitioner Company received the iron and steel materials from undisclosed sources or from their company's factory at Andhra Pradesh; and whether the petitioner company fabricated the records, etc. As against the petitioner, the Enforcement Wing also initiated proceedings and the same are also pending. Further, under section 10(2) of the Tamil Nadu General Sales Tax Act, 1959, the burden is on the part of the person, who claims the benefit. Here in this case, petitioner Company claims exemption on the basis that the iron and steels sold by the petitioner has already suffered tax on the first sale. For proper appreciation, section 10(2) of the Act is extracted hereunder, "Section.10(2) Notwithstanding anything contained in this Act or in any other law for the time being in force, a dealer in any of the goods liable to tax in respect of the first sale or first purchase in the State shall be deemed to be the first seller or first purchaser as the case may be of such goods and shall be liable to pay tax accordingly on his turnover of sale or purchase relating to such goods, unless he proves that the sale or purchase, as the case may be, of such goods had already been subjected to tax under this Act." 11. The case of the petitioner Company is that for the pre- assessment notices, reply was given, however effective reply could not be submitted as the newly appointed consultant was not aware of all the facts. Thus, it is clear case of the petitioner that all facts which according to the petitioner could have been placed before the respondent, were not placed before the respondent and therefore the impugned order was passed. 12. The learned Additional Government Pleader for the respondent contended that effective and adequate opportunity was given to the petitioner before passing the final assessment orders and principles of natural justice is not violated and therefore the petitioner can very well challenge the assessment orders of the respondent before the Appellate Assistant Commissioner under section 31 of the TNGST Act, 1959. Section 31(3) mandates the Appellate Assistant Commissioner to dispose of the appeal in the following manner: https://hcservices.ecourts.gov.in/hcservices/ "Section 31(3) In disposing of an appeal, the Appellate Assistant Commissioner may, after giving the appellant a reasonable opportunity of being heard, and for the sufficient reasons to be recorded in writing- (a) in the case of an order of assessment- (i) confirm, reduce, enhance or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as he may think fit; or (b) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal, the appropriate authority shall have the right to be heard either in person or by a representative." From the perusal of the above provision it is evident that the Appellate Assistant Commissioner is empowered to confirm, reduce, enhance or annul the assessment or the penalty or both; set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or pass any order as he may think fit. It is also stated that the appellant is entitled to be heard either by person or by a representative. In view of the said power available to the Appellate Assistant Commissioner, petitioner can re-argue the matter including raising of factual aspects, which can be verified by the appellate authority. It is well settled in law that the disputed facts cannot be decided in a writ petition as held in the decisions reported in (2006) 9 SCC 256 (Himmat Singh v. State of Haryana). In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows: "Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter." https://hcservices.ecourts.gov.in/hcservices/ 13. When appealable order is passed, particularly when the facts are in dispute, writ petition filed under Article 226 of the Constitution of India without availing the alternate remedy is not maintainable is the consistent view taken by the Supreme Court and by this Court. (a) In the decision reported in 2008 AIR SCW 1815 (C.C.T.Orissa v. Indian Explosives Ltd.) the Supreme Court set aside the order passed in a tax matter and in paragraph 7 held thus, "7. The High Court seems to have completely lost sight of the parameters highlighted by this Court in a large number of Cases relating to exhaustion of alternative remedy. Additionally the High Court did not even refer to the judgment of another Division Bench for the assessment years, 1997-98 and assessment years 1998-99 in respect of ICI India Ltd. In any event the High Court ought to have referred to the ratio of the decision in the said case. That judicial discipline has not been adhered to. Looked at from any angle, the High Court's judgment is indefensible and is set aside." (b) A Division Bench of this Court in the decision reported in 2006 (205) ELT 9 (Mad) (Nivaram Pharma Pvt. Ltd. v. CEGAT, Madras) considered similar issue of by-passing alternate remedy in tax matters. In paragraphs 5 to 14 the Division Bench held as follows: "5. It is well settled by a series of decisions of the Supreme Court that particularly in tax matters there should be no short circuiting of the statutory remedies, vide Titaghur Paper Mills Co. Ltd. v. State of Orissa - AIR 1983 SC 603, Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited, 1985 (19) E.L.T. 22 (SC) = AIR 1985 SC 330, etc. 6. It is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this Court under Article 226 of the Constitution should not be invoked. This principle applies with greater force regarding tax proceedings. As observed by the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa - AIR 1983 SC 603: "Where a right or liability is created by a statute which gives a special https://hcservices.ecourts.gov.in/hcservices/ remedy for enforcing it, the remedy provided by that statute only must be availed of." 7. A Constitution Bench of the Supreme Court in G.Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 held that as the Motor Vehicles Act is a self contained code and itself provides for a forum for appeal/revision, the writ jurisdiction should not be invoked in matters relating to its provisions. A similar view was taken in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited, 1985 (19) E.L.T. 22 (SC) = AIR 1985 SC 330. 8. In Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited (supra) the Supreme Court observed: "In Titaghur Paper Mills Co. Ltd. v. State of Orissa - AIR 1983 SC 603 A.P.Sen, E.S.Venkataramiah and R.B.Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. 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 Art.226 of the Constitution. But, then the https://hcservices.ecourts.gov.in/hcservices/ Court must have good and sufficient reason to by pass 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 Art.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." 9. In C.A.Ibrahim v. ITO, AIR 1961 SC 609, H.B.Gandhi v. M/s.Gopinath & Sons, 1992 (Suppl) 2 SCC 312 and in Karnataka Chemical Industries v. Union of India, 1999, (113) E.L.T. 17 (SC) = 2000 (10) SCC 13 the Supreme Court held that where there is a hierarchy of appeals provided by the statute the party must exhaust the statutory remedies before resorting to writ jurisdiction. All these decisions are related to taxing statutes, and are hence apposite to the present context. 10. In Sheela Devi v. Jaspal Singh, AIR 1999 SC 2859 and Punjab National Bank v. D.C.Krishna, 2001 (6) SCC 569 the Supreme Court held that if the statute provides for remedy of revision or appeal, writ jurisdiction should not be invoked. 11. In Union of India v. T.R. Verma, AIR 1957 SC 882 the Supreme Court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds to do otherwise. 12. In A. Venkatasubbiah Naidu v. S.Chellappan, (2000) 7 SCC 695 (vide para 22) the Supreme Court deprecated the practice of exercising the writ jurisdiction when an efficacious alternative remedy is available. https://hcservices.ecourts.gov.in/hcservices/ 13. In W.P.No.981 of 2003 (Tax) (M/s.Khandelwal Soya Industries Ltd. v. State of U.P. and others) decided on 27.8.2003 a Division Bench of the Allahabad High Court dismissed a writ petition challenging the provisional assessment orders under the U.P.Trade Tax Act on the ground of alternative remedy under Section 9 of that Act. Against the aforesaid judgment, Special Leave Petition was filed before the Supreme Court which has been dismissed. We respectfully agree with the view taken by the Allahabad High Court in the aforesaid decision. 14. We are therefore surprised that the writ petition was entertained at all by this Court." (c) Same is the view taken by different Division Benches of this Court in W.A.No.1555 to 1557 of 2007 dated 10.12.2007; W.A.Nos.749 & 750 of 2006 dated 22.6.2006 and W.A.Nos.590 & 591 of 2008 dated 11.6.2008. In W.A.No.590 & 591 of 2008 the First Bench of this Court by order dated 11.6.2008 held as follows: "2. These writ appeals have been filed challenging an order passed by the learned single Judge, dated 17.9.2007. Subject matter of the challenge was an order passed by the Assessing Authority under the Tamil Nadu General Sales Tax Act. We need to consider the merits of the case, as in view of the admitted position against the order of the Assessment Officer, statutory appeal is provided. We just remind ourselves of the repeated directions given by the Apex Court that in the Revenue matters, the Taxing Statute itself is a complete Code and the writ court should not ordinarily interfere unless the assessee had exhausted all his statutory remedies. 3. In view of this well settled principle, we direct the appellant to file an appeal within a period of three weeks from today before the Appellate Authority. ......." (d) In the decision reported in 2008 (14) VST 276 (Mad) (Sharda Industries v. Commercial Tax Officer, Chennai) similar view was taken by a learned single Judge (M.Jaichandren, J.). The learned Additional Government Pleader submitted that the said view of the learned single Judge was confirmed by a Division Bench. 14. In view of the settled legal position i.e., disputed facts cannot be gone into in a writ petition and in tax matters https://hcservices.ecourts.gov.in/hcservices/ wherever alternate remedy is provided, writ petition shall not be entertained, I am of the view that these writ petitions challenging the orders of assessment made by the respondent, are not maintainable and the petitioner is bound to file appeals against the said orders of assessment as per section 31 of the Act. 15. Petitioner is given two weeks time to file appeals against the orders of the assessment and if such appeals are filed within two weeks, the appellate authority is directed to consider the same on merits and in accordance with law, without referring to the period of limitation. Since I am deciding the writ petitions solely on the ground of availability of alternate remedy, merits of the cases canvassed by the learned Senior Counsel for the petitioner Company and by the learned Additional Government Pleader are not considered and decided in this order, in any manner. 16. All these writ petitions are dismissed with the above observations. No costs. Connected miscellaneous petitions are also dismissed. Vr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Deputy Commercial Tax Officer, Valluvarkottam Assessment Circle, Chennai. • 2 ccs to the Special Government Pleader, SR Nos.32532, 32531 • 1 cc to Mrs. R. Hemalatha, Advocate SR No. 32673 Order in W.P.Nos.2392, 2393 & 13457/2008 SS(CO) SR/7.7.2008 https://hcservices.ecourts.gov.in/hcservices/