Tvl.Lohia Timbers(P)Ltd v. The Deputy Commercial Tax
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.07.2016
CORAM:
THE HON 'BLE MR. JUSTICE T.S.SIVAGNANAM Writ Petition No.29806 of 2004 & W.P.M.P.No.36201 of 2004 & W.V.M.P.No.139 of 2008 Tvl.Lohia Timbers (P) Limited, 83 Sydenhams Road, First Floor, Periamet, Chennai - 600 003 ... Petitioner
Versus
The Deputy Commercial Tax Officer, Vepery Assessment Circle, Chennai .. Respondent Prayer:- Writ Petition filed under Article 226 of the Constitution of India, seeking for a writ of certiorarified mandamus to call for the respondents of the respondent herein in TNGST/0523144/2002-2003 dated 20.09.2004, quash the same as illegal, unlawful, unconstitutional and direct the respondent to pass a fresh order, after affording personal hearing to the petitioner.
For Petitioner : No Appearance For Respondent : Mr. Manokaran Sundaram, AGP., ----
O R D E R
None appears for the petitioner. Heard Mr.Manokaran Sundaram, learned Additional Government Pleader, appearing for the respondent.
2. The petitioner, who is the dealer and registered under the provisions of the erstwhile Tamil Nadu General Sales Tax Act, 1959, has filed this writ petition, challenging the order of assessment, dated 20.09.2004, under the TNGST Act, for the year 2002-2003.
3. I have carefully considered the grounds raised by the petitioner, the affidavit filed in support of the writ petition and perused the material / papers filed in the typed set.
4. On a perusal of the materials as well as the impugned order of assessment, it is evidently clear that the order of assessment is a speaking order and detailed reasons have been given. To test the correctness of the impugned order, necessarily this Court should embark upon a fact finding exercise, adjudicating the disputed question of fact and then to come to a conclusion. This precisely cannot be done in a petition filed under Article 226 of the Constitution of India.
5. The matter arises under the provisions of a taxation statute and it has been held that the parties should not be allowed to bypass the statutory remedy available to them under the provisions of the Act. The grounds raised by the petitioner are also factual. In the counter affidavit several facts have been stated and it would be useful to refer to one such paragraph in the counter affidavit, which appears to explain the modus operandi, which reads as follows:- "13. it is respectfully submitted that there was no company in existence in the name of Tvl.Ronak Machine Tools, at No.91, Armenian Street, Chennai - 1, from whom the petitioners had purchased machineries.
The petitioners represent that these machineries were brought by them for installation in their factory at Bandikavanur Village, Sholavaram, Ponneri Taluk, but they did not lot in any other supporting documents to prove that those machineries were actually intended for installation in their factory at Bandikavanur Village, Ponneri, by producing the necessary purchase order or like any other similar documents sent to Tvl.Ronak Machine Tools, Chennai - 1, and their letter if any and also the freight charges paid for taking the machineries to Bandikavanur factory and the charges paid for installation of the machineries at the factory. Above all the selling dealers were not found in existence to make an enquiry.
Hence, this goes to say that the petitioners had indulged in selling machineries with a fictitious address with fictitious registration number and with sufferance of resale tax endorsement to enjoy the customer dealers also to avail the benefit of tax at 11%. Once it is found that the petitioners had indulged in selling machineries with fictitious addresses and registration number the transactions effected by them with the remaining serial number of the sale bills have also to be estimated and hence the transactions with Serial No.1 of the bill were estimated and correctly assessed to tax.
therefore respectfully submitted that the estimation made in according with law and therefore sustainable."
6. Thus, it is clear that, to test the correctness of the impugned order necessarily all the factual issues have to be adjudicated which cannot be done in a writ petition. This Court is conscious of the fact that the writ petition is pending from the year 2004 and an order of stay has been granted and though the respondent had filed petition to vacate the interim order in April 2008, the petition has not been listed. Though the matter is pending from the year 2004, at this stage, this Court cannot convert itself as an Assessing Officer or Appellate Authority and embark upon a fact finding exercise. Therefore, this Court is of the definite view that the petitioner should prefer an appeal as against the impugned order.
7. In the light of the above, this writ petition is held to be not maintainable and accordingly, it is dismissed. However, liberty is granted to the petitioner to file an appeal before the Appellate Authority, within a period of 30 days from the date of receipt of a copy of this order. If the same is filed within the time limit prescribed, the Appellate Authority shall not dismiss the appeal on the ground of limitation and shall consider the same in accordance with law. No costs. Consequently, the connected WPMP and WVMP are closed.
Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar srk To
1. The Deputy Commercial Tax Officer, Vepery Assessment Circle, Chennai 1 cc to The Special Government Pleader (Taxes), sr.42591 Writ Petition No.29806 of 2004 & W.P.M.P.No.36201 of 2004 & W.V.M.P.No.139 of 2008 vd co kra 17.08.2016