Madras High Court
M/S.Shinago Infrastructure & ... vs The Commercial Tax Officer on 8 January, 2016
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.01.2016
CORAM
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
W.P.(MD)No.417 of 2016
and
WMP(MD)No.343 of 2016
M/s.Shinago Infrastructure & Resources Ltd.,
Rep. By its Managing Director
Mr.Shivgan K.Patel ...
Petitioner
Vs.
The Commercial Tax Officer,
Shencottah(c),
Shencottah, Tirunelveli Dist. ...
Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records of
the respondent in his proceedings in TIN.No.33295702174/2013-2014 and quash
the order, dated 17.02.2015 in so far as the reversal of ITC and further
direct the respondent to consider the claim of ITC as per Section 19(1) of
the TNVAT act in terms of the decisions of this Honourable Court reported in
50 VST 179 & 60 VST 283 and also in W.P.No.9265 of 2013, dated 06.11.2014 and
pass appropriate order in accordance with law.
!For Petitioner : Mr.R.D.Ganesan
^For Respondent : Mr.R.Karthikeyan,
Additional Government Pleader
:ORDER
This Writ Petition is filed challenging the order of assessment, dated 17.02.2015 admittedly received by the petitioner on 18.02.2015.
2. As against the order of assessment, a statutory appeal lies before the appellate authority. Without exhausting such alternative remedy, the present Writ Petition is filed that too after nearly one year from the date of issuance of assessment order and receipt of the same. Moreover, in this case, it is seen that before passing the impugned order, the petitioner was given notice on 03.12.2014 and in spite of receipt of such notice, they have not filed any objection. Even though they were given one more opportunity, the petitioner seems to have not filed any objection nor utilized the opportunity of personal hearing. The above said fact is evident from the impugned order itself. Therefore, I find there is no violation of principles of natural justice while passing the impugned order. Once the order of assessment is passed by a competent authority and there is no violation of principles of natural justice, the assessee has to resort to the remedy of appeal and challenging the assessment order if they have anything to say on the assessment order on merits, as the appellate authority is also a fact finding authority. This Court is of the view that all the contentions raised by the petitioner herein can very well be raised before the appellate authority. In this case, the petitioner has not chosen to file any appeal so far. It is well settled that in fiscal matters resorting to file writ petitions before the High Court without exhausting the statutory remedy of appeal before the appellate authority cannot be entertained or permitted. In this connection, the following decisions can be usefully referred to:
1) (2010)4 SCC 772 (Rajkumar Shivhare vs. Assistant Director, Directorate of Enforcement and another).
2) (2005)2 MlJ 246 DB (M/s.Nivaram Pharma Private Limited rep. by its Director Sardarmal M.Chordia, Madras vs. The Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, Madras and others.
3) (2010)8 SCC 110 (United Bank of India vs. Satyawati Tondon and others.
4) 2010(259) ELT 37 (Mad) DB (Maritime Collector vs. Madura Coats Limited)
5) (2010)4 SCC 554 (Rajeev kumar and another vs. Hemraj Singh Chauhan and others)
3. The very same view was already taken by me in W.P(MD)No.1409 of 2015 dated 05.02.2015 to dismiss the same by following the above said decisions on the ground that the writ is not proper remedy, when the alternative remedy by way of filing an appeal is available to the petitioner therein. It is not the case of the petitioner herein that they were not put on notice or that the authority, who passed the order of assessment, is not having the jurisdiction. On the other hand, though such notice was put on to the petitioner, they have not utilized the opportunity and therefore, the competent authority cannot be found fault with in passing the impugned order in the absence of the objections raised by the petitioner.
4. Therefore, I find that the petitioner is not justified in filing the Writ Petition after a period of nearly one year especially when statutory remedy by way of filing an appeal is available to the petitioner, not only on account of its maintainability and also on the ground of laches. Accordingly, this Writ Petition is dismissed, however with liberty to the petitioner to file an appeal before the appellate authority within a period of four weeks from the date of receipt of a copy of this order. If any such appeal is filed, the authority shall consider the same on merits and in accordance with law without reference to the period of limitation. No Costs. Consequently, connected miscellaneous petition is closed.
To The Commercial Tax Officer, Shencottah(c), Shencottah, Tirunelveli Dist. .