Madras High CourtWP/22756/2002allowed

M/S.Karthikeya Paper & Boards v. The Appellate Asst Commr

2017-08-01Honourable Mr Justice T. S. Sivagnanam5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01.08.2017

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM WP.Nos.22756/2002 and 7044/2005 & W.M.P.No.7712/2005 W.P. No. 22756 of 2002 M/s.Karthikeya Paper and Boards Ltd., No.797, Raja Nagar, Sathyamangalam, Erode District, Rep. by its Managing Director ... Petitioner Vs.

The Appellate Assistant Commissioner (CT), Coimbatore.

Ram Nagar Circle, Coimbatore.

... Respondents Prayer in WP.No.22756/2002:

Petition under Article 226 of the Constitution of India praying for issuance of a Writ of mandamus to direct the first respondent to entertain the appeal of the petitioner against its assessment in C.S.T.No.643795/2000-2001 dated 4.4.2002 without insisting upon any pre-deposit. For Petitioner ::

Mr. B. Natarajan For Respondents::

Mr.K. Venkatesh, Government Advocate WP.No.7044/2005 M/s.Karthikeya Paper and Boards Ltd., 14, Kalingarayan Street, Ramnagar, Coimbatore.

... Petitioner Vs.

The State of Tamilnadu represented Department of Commercial Taxes and Religious Endowments, Fort St. George, Chennai 600 009.

The Union of India represented by the Secretary, Ministry of Finance, Department of Revenue, New Delhi.

Ramnagar Circle, Coimbatore.

The State of Andhra Pradesh, rep. By Secretary to Government, Department of Revenue, Hyderabad, Andhra Pradesh.

The State of Kerala rep, Department of Revenue, Thiruvananthapuram, Kerala.

The State of Orissa rep, Department of Revenue, Bhubaneshwar, Orissa.

The State of Maharashtra, rep, Department of Revenue, Mumbai, Maharashtra.

The State of Karnataka, rep.

By the Secretary to Government, Department of Revenue, Bangalore, Karnataka.

The State of West Bengal, rep, Department of Revenue, Kolkatta, West Bengal.

10.

The Union territory of Pondicherry, Rep. by the Secretary to Government, Department of Revenue, Pondicherry.

..Respondents Prayer in WP.No.7044/2005:

Petition under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified mandamus to call for the records of the third respondent in CST/643795/2000-2001, quash the order dated 4.4.2002 and to direct the third respondent to consider the issue relating to stock transfer as well as consignment transfer on the basis of Form F declarations filed by the petitioner in

the light of the judgment of the Supreme Court in the case of Ashok Leyland Ltd., reported in 134 STC 473.

For Petitioner ::

Ms.Hema Muralikrishnan For Respondents::

Mr.K. Venkatesh, Government Advocate for R1 and R3 Mr.T.V.Krishnamachari Central Govt. Standing Counsel for R2 Ms.T.P.Savitha for R9 No appearance for R4 to R8 C O M M O N O R D E R Since, both the writ petitions have been filed by the very same petitioner and pertaining to the very same assessment year namely 2000-2001 under the Central Sales Tax Act, both the petitions are heard together and disposed of by this common order.

2. The petitioner has first moved this Court by way of filing WP.No.22756/2002, praying for a direction to the Appellate Authority, namely, the Appellate Assistant Commissioner (CT), Coimbatore to entertain their appeal as against the assessment order dated 04.04.2002, without insisting upon pre-deposit. No interim relief was granted and in fact, the miscellaneous petition was dismissed. Subsequently, in the year 2005, since the matter was pending before the Hon'ble Supreme Court, the petitioner has filed WP.No.7044/2005 challenging the assessment order dated 04.04.2002 under Central Sales Tax Act for the assessment year 2000-2001. The learned counsel appearing for the petitioner submitted that in the light of the decision of the Hon'ble Supreme Court in the case of Ashok Leyland Vs.

State of Tamil Nadu, (2004) 134 STC 473, the writ petitions can be disposed of. The contention raised by the learned counsel for the petitioner are two fold. Firstly, on the date when the appeals filed by the State were allowed by the Tribunal, the judgment of the Hon'ble Supreme Court in the case of Ashok Leyland was not available. The second contention is that though the petitioner had filed a cross-objection, the same was not considered by the tribunal.

From a perusal of the order passed by the Tribunal in the instant cases, it is clear that the cross objection has not dealt with in a proper manner. That apart, the nature of transaction involved was the subject matter of consideration of the Hon'ble Supreme Court and while considering the same, the Hon'ble Supreme Court pointed out that particulars required to be furnished in Form F declaration clearly manifest that the proof required is as to whether the goods were factually transported to the assessee himself or his branch office or his agent and not to any third party. Any other enquiry is beyond the realm of the Assessing Officer. In the instant case, it is clear that no such enquiry was conducted.

However, the decision of the Honourable Supreme Court having been rendered after the order had been passed assessing the petitioner to tax, this Court is of the view that the matter should be remanded back to the Assessing Officer for taking a fresh decision in accordance with the directions issued by the Hon'ble Supreme Court. Thus, for the above reasons, WP.7044/2005 is allowed. The impugned order is setaside and the matter is remanded back to the third respondent/Commercial Tax Officer, Ram Nagar Circle, Coimbatore, with a direction to apply the decision of the Hon'ble Supreme Court in the case of Ashok Leyland (Supra) and take a fresh decision on merits and in accordance with law. Consequently, WP.No.22756/2002 is closed as unnecessary. No costs. Connected W.M.P. is closed.

Sd/- Asst.Registrar (CS IV ) /true copy/ Sub Asst. Registrar To 1.