Arulmigu Nimishambal Thirukkoil vs The Commissioner, Corporation of Chennai, The Area Engineer-II, The Assistant Engineer and The Taxation Appellate Tribunal

K. Ravichandrabaabu, J.—The petitioner is a temple. The order under challenge in this writ petition is the final assessment order passed by

the Revenue Department of the Chennai Corporation imposing property tax. The case of the petitioner is that they have filed property tax return

during the general revision survey for the second half year 1998-99 on 07.12.1998 by showing 359 sq. ft. as rented portion. But without

considering the said fact, the first respondent wrongly assessed the property as 1,800 sq. ft. in the name of the temple. The temple is situated in the

area of 906 sq. ft. and the shops are situated in front of the temple measuring only 359 sq. ft. According to the petitioner, the demand was in

pursuant to a wrong assessment. Therefore, the said assessment order is challenged before this court.

Heard the learned counsels appearing on either side.

In my considered view, without going into the merits of the matter, the writ petition can be dismissed on the sole around that the petitioner has

not availed the statutory appellate remedy which, in fact, has been stated in the impugned order of assessment.

Therefore, without exhausting such statutory appellate remedy, the petitioner is not entitled to maintain the present writ petition. It is well settled

that the parties cannot short circuit the proceedings by filing a writ petition straight away before this Court, without exhausting the statutory

appellate remedies especially when the matter is of fiscal in nature. The Hon''ble Division Bench of this Court in its decision reported in Nivaram

Pharma Pvt. Ltd. Vs. The customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, The Commissioner of Central Excise

(Appeals) and The Assistant Commissioner of Central Excise, Madras IV Division, , has also observed at paragraph Nos. 5 and 6 as follows:

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. and Another Vs. State of Orissa and Others, , Assistant Collector of Central Excise, Chandan

Nagar, West Bengal Vs. Dunlop India Ltd. and Others, ,

It is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this Court under Art. 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.

and Another Vs. State of Orissa and Others, .

Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be

availed of.

Therefore, I am of the view that the petitioner should be directed to file an appeal before the Appellate Tribunal. It is represented by the

petitioner''s counsel that in fact, the petitioner preferred an appeal before the Tribunal and the same was returned with an endorsement as

''refused''. This court is not in a position to know as to why such appeal was returned as ''refused''. The petitioner''s counsel further expressed that

the payment of 50% of the tax before the Appellate Authority would cause prejudice to the petitioner as it is a temple and therefore, such

requirement of payment may be dispensed with. Considering all the facts and circumstances and considering that this writ petition was pending for

the past eight years, I am of the view that the petitioner should be permitted to file an appeal before the Taxation Appellate Tribunal, without

payment of the deposit of 50% of the tax. Accordingly, this writ petition is dismissed with liberty to the petitioner to file an appeal before the

Appellate Authority within a period of three weeks from the date of receipt of a copy of this order without the deposit of 50% of the demand. On

receipt of the above appeal, the Appellate Tribunal shall consider the same and pass orders on merits and in accordance with law within a period

of four weeks thereafter. No costs. The connected miscellaneous petition is closed.