Madras High Court
24.09.2020 [M/S.Eaton Power Quality - vs -.C.T.O.] on 24 September, 2020
Author: V.K
Bench: Vineet Kothari
Judgment in W.A.Nos.755 & 756 of 2020 dated
24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.]
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2020
CORAM
THE HON'BLE DR.JUSTICE VINEET KOTHARI
AND
THE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY
Writ Appeal Nos.755 and 756 of 2020
and C.M.P.Nos.9981, 9988 and 9993 of 2020
Eaton Power Quality Pvt Ltd.,
Rep.by its DGM Finance Mr.A.Devaraj
Safexpress Logistics Park
Adayalampattu, Vanagaram
Chennai 600 095. ... Appellant in both appeals
Vs.
Commercial Tax Officer
Vanagaram Assessment Circle
No.176-B, MTH Road, Villivakkam
Chennai 600 049. ... Respondent in both
appeals
Writ Appeals under Clause 15 of the Letters Patent against the order in
W.P.Nos.16714 and 16764 of 2019 dated 17.06.2019.
For Appellant : Mr.Joseph Prabhakar
For Respondent : Mr.Mohammed Shaffiq
Special Government Pleader (Taxes)
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Judgment in W.A.Nos.755 & 756 of 2020 dated
24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.]
JUDGMENT
(Judgment of the Court was delivered by DR.VINEET KOTHARI,J) The appellant M/s.Eaton Power Quality Private Limited has approached this Court by way of the present intra-court appeals aggrieved by the order dated 17.06.2019 passed by the learned Single Judge dismissing W.P.Nos.16714 and 16764 of 2019 on the ground of availability of alternative remedy under the Tamil Nadu Value Added Tax Act before the appellate authority as the present writ petitions were filed against the two assessment orders dated 29.11.2019 and 30.04.2019 as noted in para 3 of the order impugned before us.
2. The reasons assigned by the learned Single Judge in the impugned order are quoted below for ready reference.
“8. In response to this, learned counsel taking this Court through the impugned order, submitted that the Authority has only said, in the absence of supporting documents, Form WW cannot be amended / revised. However, fact remains that the corrigendum has certainly not been looked into. The relevant portions in the impugned order read as follows:
'...The dealers reply is not accepted, since the Form WW cannot be amended/revised after issue of notice without supporting documents...' '...Hence, the exemption claimed on the turnover of Page 2 of 9 http://www.judis.nic.in Judgment in W.A.Nos.755 & 756 of 2020 dated 24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.] Rs.93,14,440/- is allowed and not covered by the Form I turnover of Rs.1,79,95,677 as reported in the corrigendum to Form WW for the year 2016-17 is disallowed and assessed to tax at 14.5%'.
9. Learned counsel for writ petitioner submitted that the exemption disallowed on Export sales at the rate of 14.5% has been shown as Rs.14,05,75,648/-, which is erroneous and this is what was sought to be amended.
10. As already alluded to supra, this is not supported by documents is, learned Revenue counsel's say.
11. Further trajectory of hearing today brings to light that rate of tax for UPS projected by the writ petitioner has been rejected originally on the ground that the product is not UPS at all. As far as the corrigendum to Form WW is concerned, this Court is of the view that it will serve the interest of Revenue as well as the writ petitioner, if the Appellate Authority is directed to look into the corrigendum to Form WW, if supporting documents are produced before the Appellate Authority.
12. Before making the operative portion of this order, this Court considers it necessary to make it clear that all questions on merits are left open. This is more so as several grounds on merits have been raised in the affidavit filed in support of the writ petition and this court is relegating the writ petitioner to the alternate remedy.” ......
16. In the instant cases, in the light of narrative thus far, this Court is of the considered view that this case does not fall under any of the aforesaid exceptions. It is nobody's case that the Page 3 of 9 http://www.judis.nic.in Judgment in W.A.Nos.755 & 756 of 2020 dated 24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.] Authority has passed the impugned orders without jurisdiction. With regard to NJP, discussion supra will reveal that personal hearing has admittedly been granted to the writ petitioner. It is also nobody's case that alternate remedy is ineffective, ineffectual or not efficacious.
17.However, the issue regarding corrigendum to Form WW shall be looked into by Appellate Authority as Appellate Authority is also an Authority on facts. This Course is being adopted by this Court based on the submissions made to the effect that this matter turns heavily on facts and supporting documents.
18. Owing to all that have been set out supra, the following order is passed:
a) Impugned orders are not interfered with and all questions on merits are left open. Impugned orders are not interfered with on the ground of availability of effective and efficacious alternate remedy. In other words, no view is expressed on merits.
b) The rider will be, if the writ petitioner chooses to avail the alternate remedy by filing an appeal to the Appellate Authority, namely Appellate Deputy Commissioner (CT), Chennai(South), the Appellate Authority shall consider the issue of corrigendum /amendments to Form WW (Auditor Certificate) inter alia by permitting the writ petitioner to file supporting documents.
c) If there is any delay in filing appeal before Appellate Authority, it is open to the writ petitioner to take out an appropriate application and also seek the benefit of Section 14 Page 4 of 9 http://www.judis.nic.in Judgment in W.A.Nos.755 & 756 of 2020 dated 24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.] of Limitation Act. If this Course is adopted it is left open to the Appellate Authority to decide the same on its own merits.”
3. Learned counsel for the appellant Assessee submitted before us that the impugned assessment orders passed by the Assessing Authority can be assailed before Writ Court if there has been a breach of principles of natural justice and therefore the learned Single Judge ought to have entertained the writ petitions on merits and allowed the same. He further submitted that Section 63A of the Tamil Nadu VAT Act permits amendment and modification of Form 'WW' to be signed by Chartered Accountant / Auditor of the Assessee company. He further submitted that the same learned Single Judge after few days, allowed another writ petition with regard to the rate of tax applicable on the UPS (Uninterrupted Power Supply) sold by the Assessee and accordingly the Assessing Officer himself has rectified the Assessment Orders for subsequent periods. He referred to the proceedings of the Assessing Authority dated 13.08.2019 and submitted before us that for the Assessment Orders involved in the present appeals, the Assessee has already filed Rectification Application before the Assessing Officer who is seized of the same as of now. He therefore submitted that the writ appeals deserve to be allowed and the impugned order of the learned Single Judge deserves to be set aside.
Page 5 of 9 http://www.judis.nic.in Judgment in W.A.Nos.755 & 756 of 2020 dated 24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.]
4. Per contra, Mr.Mohammed Shaffiq, learned Special Government Pleader (Taxes) supported the impugned order and urged before us that entertainment of the writ petitions while alternative remedy is available, is a matter of discretion of the learned Writ Court and therefore relegating the Assessee back to the Appellate Authority cannot be said to be wrong exercise of jurisdiction and the present writ appeals are not sustainable. He drew our attention to paragraph 8 quoted above and submits that Form 'WW' cannot be amended / revised as the questions of fact are related to the same and therefore the learned Single Judge was justified in relegating the matter to the Appellate Authority.
5. On the question of rate of tax applicable on UPS, he invited our attention to Para 11 of the order of the learned Single Judge, where the learned Single Judge has observed that the rate of tax on UPS projected by the writ petitioner has been rejected originally on the ground that the product is not UPS at all. He therefore submitted that these facts have to be properly established before the authorities below who can return the findings of facts based on the evidence led by the Assessee.
6. Having heard the learned counsel for the parties, we are of the clear opinion that the present writ appeals do not have any merit and deserve to be Page 6 of 9 http://www.judis.nic.in Judgment in W.A.Nos.755 & 756 of 2020 dated 24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.] dismissed. The well settled legal position about exercising writ jurisdiction against appealable assessment orders has been settled by a catena of decisions by the Hon'ble Supreme Court and various High Courts. While alternative remedy is not a bar to the jurisdiction of the High Court under Article 226 of the Constitution of India, it is certainly a rule of discretion given to the Writ Courts and therefore if the learned Single Judge has not entertained the writ petitions even on the grounds, interalia, raised before the Writ Court viz., the breach of principles of natural justice, we are of the considered opinion that the said order does not require any interference. All these grounds or grievances including breach of principles of natural justice can obviously be raised before the appellate authority.
7. On the question of interpretation of Section 63A and furnishing of Form 'WW' by the Chartered Accountant is concerned, we do not want to express any opinion on the same as it may prejudice the case of the Assessee as well as the Revenue before the appellate authorities below. Nor on the question of rate of tax applicable on UPS, we intend to express any opinion, because it is a question of fact and deserves to be established by the Assessee and admittedly on 02.03.2020 the Assessee has filed a Rectification Application before the authority concerned, who is now seized of the matter. Therefore, expressing any opinion on the merits of the contentions raised by the learned counsel for the Assessee Page 7 of 9 http://www.judis.nic.in Judgment in W.A.Nos.755 & 756 of 2020 dated 24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.] will unnecessarily prejudice the case of the parties before the authorities below. The Rectification Application filed by the Assessee on 02.03.2020 before the Assessing Officer should be however decided in accordance with law expeditiously.
8. Therefore, we decline to interfere with the order impugned in the present intra-Court appeals in any manner and we leave it free for the Assessee to avail its remedy by way of appeal before the first Appellate Authority in accordance with law. Accordingly, the present intra-Court appeals are dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
(V.K.,J.) (K.R.,J.) 24.09.2020 Index : Yes/No Internet : Yes/No KST Page 8 of 9 http://www.judis.nic.in Judgment in W.A.Nos.755 & 756 of 2020 dated 24.09.2020 [M/s.Eaton Power Quality -Vs-.C.T.O.] Dr.VINEET KOTHARI, J.
and KRISHNAN RAMASAMY, J.
KST W.A.Nos.755 and 756 of 2020 24.09.2020 Page 9 of 9 http://www.judis.nic.in