If infringement of fundamental rights occurs, wirit petiton not maintainable, HC

Facts in Brief:

1. Though common objections were submitted by the petitioner seeking copies of third party documents, an opportunity to cross-examine the dealers at other end and a personal hearing, the same have not been granted by the respondent and the contentions have not been considered by the respondent. Further, though the C Forms and other documents have been submitted, the respondent has not considered the same and has passed the impugned proceedings.

2. Whereas the petitioner filed W.P alleging that the impugned order dated 14.05.2015 has been passed without affording any opportunity and thereafter, the petitioner submitted all the statutory forms and requested the respondent to revise the earlier order. However, the same was rejected by the impugned order dated 03.09.2015 stating that the revision under Section 84 cannot be invoked for a revision under CST Act. Aggrieved thereby, the petitioner has challenged both the proceedings.

3. The grievance of the petitioner in W.P.No.3088 of 2016 is that ITC has been reversed for non-submission of statutory C forms under the CST Act and that the order is consequence to the order passed under the CST Act. Further, Rs 2,46,141/- (Rupees Two Lakhs Forty Six Thousand One Hundred and Forty One only) was collected and once the order is reversed under the CST Act, the impugned order under the TNVAT could not survive and the amount collected has to be refunded.

On appeal HC held,

4. In this regard, it is useful to recall the law laid down by the Honourable Apex Court in the Judgment reported in 146 STC 1, wherein it is held as follows:

"That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.

5. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.

6. Here, in the case on hand, the impugned orders are unreasoned and in violations of the principles of natural justice. Hence, this Court is of the view that the writ petitions are maintainable.

7. Before parting, whenever a personal hearing is contemplated under the provisions of the Act or when the assessment is taken up for revision or when a personal hearing is specifically sought for, the respondent must grant the same. While affording personal hearing, the respondent must fix a specific date and time only after receipt of the objections.

8. For the foregoing reasons, the impugned orders in all the writ petitions are set aside. The matters are remanded back to the respondent for fresh consideration. The petitioner is permitted to produce all the documents including the purchase bills, books of accounts and particulars of the vehicles relied upon by them with additional objections, if any within three weeks from the date of receipt of the copy of the order.

9. Upon receipt of the same, the respondent shall fix a date for personal hearing on which date the petitioner shall appear and thereafter, the respondent shall consider the objections and all the documents including the forms submitted by the petitioner and pass orders within four weeks without being influenced by the report of the enforcement wing officials. While passing orders, the respondent shall also consider the claim of refund of the petitioner.

10. In fine, all the writ petitions are allowed to the extent indicated above. No costs. Consequently, the connected miscellaneous petitions are closed. 

Case Reference - Ultrust Solution (India) Pvt Ltd vs The Commercial Tax Officer