Madras High Court
M/S.Meenakshi Mission Hospital And ... vs The State Tax Officer on 24 November, 2022
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P.(MD)No.4787 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.11.2022
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P.(MD)No.4787 of 2022
and
W.M.P.(MD)No.3971 of 2022
M/s.Meenakshi Mission Hospital and Research Centre,
Run by S.R.Trust,
Represented by its Authorised Signatory Mr.Kannan Baskaran,
Lake Area, Uthangudi,
Madurai – 625 107. ... Petitioner
Vs.
The State Tax Officer,
Melur Assessment Circle,
Commercial Taxes Buildings,
Madurai. ... Respondent
PRAYER : Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus calling for the
records in TIN No.33684941237/2007-08 dated 14.07.2021 and quash the
same as non-speaking, arbitrary, illegal and clear violation of principles of
natural justice and being contrary to Circular dated 03.02.2014 in Circular
No.7/2014BB1/3589/2014 issued by the Principal Secretary / Commissioner
of Commercial Taxes, Chennai and pass an assessment order afresh by
considering the replies and records dated 07.05.2018 and 07.09.2018 filed
by the Petitioner after affording opportunity of personal hearing.
_________
Page 1 of 9
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.4787 of 2022
For Petitioner : Mr.S.Karunakar
For Respondent : Mr.M.Siddharthan
Additional Govt. Pleader
ORDER
The principle ground of challenge in the present Writ Petition is that the impugned order for the Assessment Year 2007-08 is a non-speaking order. The impugned order is passed on the ground that the Petitioner failed to deduct TDS in terms of Section 13(5) of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as 'the Act') and thus demands payment of TDS at 2%.
2. It is submitted by the learned counsel for the Petitioner that the Petitioner is a reputed Hospital catering to Health Care Services and was an assessee under the erstwhile Tamil Nadu Value Added Tax Act, 2006 on the file of the Respondent. There was an inspection of the Petitioner's place of business by the Enforcement Wing on 15.09.2015. During the course of inspection, there were number of defects which were noticed, inter alia, including non-deduction of TDS. Pursuant to the above inspection, a notice _________ Page 2 of 9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.4787 of 2022 dated 23.04.2018 was issued containing the proposals to treat the value of construction of building to an extent of Rs.6,51,39,140/- as liable to deduction of taxes at 2% under Section 13 of TNVAT Act, 2006. The Petitioner filed its objections/ reply dated 07.05.2018 and 07.09.2018, wherein, the Petitioner stated that the civil works was executed by their In- house Civil Department with their own team and thus question of deduction of TDS may not arise. It was further submitted that the petitioner had submitted evidence and offered its explanation before the Enforcement Wing authorities during the course of inspection on 15.09.2015 and submitted books of accounts and other records.
3. The Assessing Officer, considering the objection however found that the petitioner had not filed the relevant documentary evidence though it was stated before the Enforcement Wing Officials that they were ready to furnish the supporting documents before the respondent/Assessing Officer. No documents were produced. The proposals were thus confirmed. _________ Page 3 of 9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.4787 of 2022
4. It is submitted by the learned Additional Government Pleader for the Respondent that the impugned order is appealable, thus the exercise of power under Article 226 of the Constitution of India is unwarranted in view of the existence of alternate remedy, as the issue involves disputed questions of facts.
5. This Court is of the view that to decide the legality of the impugned order of assessment, it may necessarily involve examination of the following questions of facts viz., a. Whether the construction activity was executed by the petitioner's In-house team or by engaging contractors.
b. If contractors were engaged, whether the nature of contract entered into between the petitioner and the contractor are works contract.
c. Whether the petitioner is liable to deduct TDS on the payments made to the contractors.
_________ Page 4 of 9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.4787 of 2022 d. Whether documentary evidence were let in or not, before the authorities.
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 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 :
“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 _________ Page 5 of 9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.4787 of 2022 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 _________ Page 6 of 9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.4787 of 2022 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) 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, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law.1
7. In view of the same, the Writ Petition is dismissed, however, liberty is granted to the Petitioner to file a statutory appeal within a period of three weeks from the date of receipt of a copy of this order. If such appeal is filed, Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [Baburam Prakash Chandra 1 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] _________ Page 7 of 9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.4787 of 2022 the same shall be entertained and disposed of by the Appellate Authority as expeditiously as possible. No costs. Consequently, connected Miscellaneous Petitions is closed.
24.11.2022 (1/6) Index : Yes / No Speaking Order : Yes / No vji To
1. The State Tax Officer, Melur Assessment Circle, Commercial Taxes Buildings, Madurai.
2. The Authorised Signatory, M/s.Meenakshi Mission Hospital and Research Centre, Run by S.R.Trust, Lake Area, Uthangudi, Madurai – 625 107.
_________ Page 8 of 9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.4787 of 2022 MOHAMMED SHAFFIQ, J., vji W.P.(MD)No.4787 of 2022 and W.M.P.(MD)No.3971 of 2022 24.11.2022 (1/6) _________ Page 9 of 9 https://www.mhc.tn.gov.in/judis