THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.31979, 31980, 31983, 31984, 31991 and 32002 of 2010 January 28, 2011 Between: Economic Transport Organisation Ltd., Hyderabad Represented by Regional Manager & Authorised signatory, B.Mallikarjunappa, S/o.B.Allappa … Petitioner And Government of Andhra Pradesh, The Commercial Tax Officer-II, Chittoor And another ... Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.31979, 31980, 31983, 31984, 31991 and 32002 of 2010 COMMON ORDER: (per Hon’ble Sri Justice V.V.S.Rao) This group of six writ petitions can be conveniently disposed of by a common order. Economic Transport Organisation Limited is engaged in the business of transporting goods. Feeling aggrieved by the assessment orders-cum-demand notices dated 20.8.2010, they filed these writ petitions on 2012.2010. The impugned orders were passed by the first respondent herein under the Andhra Pradesh Value Added Tax Act, 2005 (the VAT Act) demanding value added tax. At the outset we may notice the fact of the matter from W.P.No.31979 of 2010 which is similar in other cases as well. The petitioner engaged vehicle bearing No.AP-16-X-6147 for transporting goods i.e., basilite tunspray from Salem in Tamil Nadu to Jamshedpur in Jharkhand. As it was passing through the State of Andhra Pradesh, the vehicle obtained transit pass dated 25.8.2006 under Section 47 of the VAT Act at the Integrated Check Post (ICP), Naraharipet. The vehicle then passed through ICP, Itchapuram (the exit check post). The driver of the vehicle allegedly handed over the transit pass to the Officer-in-charge at the exit check post, Itchapuram. The first respondent issued show cause notice dated 15.9.2009 calling upon the petitioner to file objections. It was alleged therein that the driver/person-in-charge of the goods had failed to surrender the transit pass at the exit check post; the same violates Section 47 of the VAT Act; and it shall be presumed that the goods carried were sold in the State of Andhra Pradesh. The petitioner alleges that no such show cause notice was issued to them. Be that as it is, the first respondent passed the impugned order observing that the petitioner did not file objections within the prescribed time. After receiving the impugned order, the petitioner submitted a representation to the first respondent denying receipt of the show cause notice. Statedly, the first respondent rejected the representation on 15.11.2010 advising the petitioner to approach the second respondent herein – the appellate authority. The petitioner then made a representation to the first respondent on 18.10.2010. By a check note dated 28.10.2010, the same was returned advising the petitioner to resubmit the same in the application in Form-APP 400, after rectifying the omissions pointed out therein, within ten days from the date of receipt of the check note. About two months, thereafter, the petitioner filed the writ petition. The first respondent filed counter affidavit opposing the writ petition. The averments therein, in brief, are as follows. The petitioner filed an appeal before the second respondent and, therefore, the writ petition is not maintainable. The vehicle, belonging to the petitioner, obtained transit pass at ICP, Naraharipet, Chittoor District, but the driver did not deliver the same at the exit check post as required under Section 47 of the VAT Act. Therefore, the officer-in-charge of the entry check post sent a report to the respondent in terms of Rule 58(9) of the Andhra Pradesh Value Added Tax Rules, 2005 (the VAT Rules). The answering respondent then issued show cause notice dated 12.9.2009 requesting the petitioner to file objections to the proposed assessment. The said notice was sent by registered post acknowledgement due. On 13.5.2009 the same was returned unserved with an endorsement, “Left”. A reminder dated 05.7.2010 was also sent to the petitioner. As there was no response the first respondent passed the impugned order, and sent it to the petitioner on 24.8.2010 by registered post acknowledgement due which was received by the petitioner. They filed letter dated 06.9.2010 stating that they had received the order-cum-demand on 02.9.2010, and that their vehicle had crossed the exit check post on 28.8.2006. The petitioner filed reply affidavit admitting that, even after the representation was returned along with check notes, they could not resubmit the appeal in the manner required under law. While denying the counter averment that the driver did not deliver the transit pass at the exit check post, the petitioner admits that the notice was issued to the owner of the goods vehicle, and that the petitioner’s office at Hyderabad received the impugned order dated 06.9.2010. The officials from the Hyderabad office contacted the head office at Calcutta to consolidate the information available. After thorough search, the files were traced out and, thereafter, a representation was made to the second respondent. The Counsel for the petitioners submits that the driver of the vehicle handed over the transit pass at the exit check post, Itchapuram, and due to lapse of time the department may not have traced the same. He nextly contends that no notice was issued to the petitioner, and the notice issued to the owner of the goods vehicle is not sufficient compliance with the law. Per contra, the Special Standing Counsel for Commercial Taxes submits that the Officer-in-charge is required to send a report to the jurisdictional assessing officer 30 days after the vehicle passed through the exit check post, Itchapuram. When the transit pass was not delivered by the driver of the vehicle engaged by the petitioner, a report was sent. Immediately the first respondent issued a notice on 16.9.2010 to the owner of the goods vehicle i.e., Economic Transport Organisation Limited, 33, Appuchetty Street, Shevapet, Salem. The same was sent by registered post acknowledgement due, which is sufficient compliance with the notice. He nextly submits that the copy of the notice was also sent with the reminder dated 09.10.2010 to the petitioner’s address in Tamil Nadu. When there was no response, after waiting till the time granted for filing objections, the impugned order was passed and served at the same address in Tamil Nadu. He points out that when the impugned order was served on the petitioner, pursuant to which they approached the first respondent by making the representation, the plea that no notice was served on them cannot be accepted. We will first consider the maintainability of the writ petition. It is well settled that a person cannot simultaneously pursue two remedies; one under the relevant statute and the other under Article 226 of the Constitution of India. The petitioner filed a representation before the second respondent on 18.10.2010. Rule 38(2)(a) of the VAT Rules requires that every appeal under Section 31(1) of the VAT Act shall be in Form-APP 400. Though the so called representation is not in compliance therewith, a perusal thereof would show that virtually the grounds urged therein and the relief prayed show that they are, in fact, appealing to the second respondent. Be that as it is, after receiving the same, the second respondent issued check notes returning the same advising them to file the appeal in proper form duly rectifying the defects. In this background, it is rather difficult to accept the submission of the Counsel that the petitioner’s representation does not bar the writ petition. Though it was not presented in the proper form, it would certainly amount to the petitioner availing the remedy under the VAT Act. Further the second respondent himself treated the representation as an appeal, and returned the same requiring rectification of the mistakes. On this ground, the writ petition is not maintainable. The plea of violation of principles of natural justice does not, in the present case, justify invocation of the jurisdiction of this Court under Article 226 of the Constitution of India. It is no doubt true that when principles of natural justice are not followed, alternative remedy is not a bar to entertain the writ petition. In Tax matters, however, the ground of violation of principles of natural justice can as well be raised before the appellate authority rather than before the High Court. In an unreported judgment in Flemingo (DFS) Private Limited v The Commissioner of Customs, Custom House, Port Area, Visakhapatnam[1], this Bench has dealt with this aspect and held that in tax matters such a grievance can as well be agitated before the appellate authority. The relevant observations are as follows. Even in cases where there is demonstrable breach of natural justice as of right a petitioner for judicial review would not lie. The aggrieved can appear before a specialist agency, be it a departmental authority or a quasi-judicial tribunal – and agitate when in matters like taxes, social security, distribution of benefits to poor where in which elaborate background facts need to be marshaled. The issue of natural justice can always be considered even by the appellate authority/tribunal. We may refer to two English cases viz., Banin v Mackinlay (Inspector of Taxes)[2] and R v Brentford General Commissioners Ex p. Chan[3]. Clive Lewis in Judicial Remedies, 2004 edn., p 412, after considering the issue comes to the conclusion that in the tax field issues of natural justice can be dealt with by the appeal system. The learned author gives the following reasons. One issue that has arisen is the extent to which questions of procedural error or breach of natural justice are suitable for resolution by an appellate mechanism. This area straddles the border between general public law and the specialized statutory scheme, since the issue of what procedure is appropriate depends on what is fair in the circumstances of a particular case. Breaches of the procedural rules will normally be dealt with on appeal, where the statutory scheme itself sets out the relevant procedural rules. Breach of the common law principles of natural justice may be dealt with on appeal, providing that the appellate body can deal adequately with such complaints. In the tax field, for example, the courts have held that issues of natural justice may be dealt with by the appeal system. Appeals on points of law to the county court in the housing field encompass all the grounds of judicial review, including procedural irregularity. Where challenges to the fairness of the initial decision may be raised on appeal, it would not generally be appropriate to grant judicial review of the initial decision. The legal position is that interference by the Court, ignoring the appellate mechanism, depends on what is fair in the circumstances of particular case, and what is the statutory scheme itself that mandates procedural fairness including compliance with natural justice. If the statute itself curtails or excludes natural justice with or without limitations, it is a sure test to deny judicial review. For instance, the statute may empower the quasi judicial body to give a personal hearing only when asked for. If the civil consequences are not drastic, the statute may mandate only “hearing by representation in writing which itself would be sufficient compliance with natural justice (see M.P.Industries Limited v Union of India[4], Union of India v Jyoti Prakash[5] and Indru Ramchand Bharvani v Union of India[6]). (emphasis supplied) The Counsel for the petitioner brought to our notice a photocopy of the transit pass in support of the contention that the vehicle left ICP, Naraharipuram on 25.8.2006, passed through the exit ICP, Itchapuram on 28.8.2006, the driver had delivered the transit pass and had obtained seal of the exit check post. The copy of the transit pass placed before this Court does not contain the signature of the ACTO, ICP, Itchapuram, though it contains the seal. It creates any amount of suspicion. The reasons are as follows. First, in the affidavit accompanying the writ petition, the petitioner has not even whispered that the driver had delivered the transit pass at ICP, Itchapuram. Secondly, in the reply affidavit except denying the counter averment that the driver of the vehicle did not deliver the transit pass at the exit check post, no statement is made. Thirdly, Section 47 of the VAT Act read with Rule 58(5) of the VAT Rules would show that the officer-in- charge of the last check post or barrier, after verifying the goods, “shall affix the seal of the check post on the duplicate copy of the transit pass under his signature and allow the vehicle to pass into the other State”. The signature of the officer-in-charge of the ICP, Itchapuram is conspicuously absent. Lastly, the transit pass shall be in Form VAT 615 and the triplicate of the same shall be in Form VAT 616. Both the Forms would show that these contained 13 columns and after the end of the 13th column, there is a declaration of the lorry owner/driver/person-in-charge and, thereafter, the signature of the CTO concerned and his seal has to be affixed. Yet again, there should be certification by the officer-in-charge of the exit check post with signature and seal. The transit pass produced before us contains 10 columns only, and the signature of the CTO concerned and the certification by the officer-in-charge of the exit check post are absent. Therefore, we are not inclined to attach any importance to the transit pass produced along with the reply affidavit. We hasten to add that these are questions which have to be agitated before the appellate authority, and the writ petition is not a proper remedy. In the result, for the above reasons, we do not find any merit and the writ petitions are, accordingly, dismissed with costs quantified at Rs.5,000/- (Rupees five thousand only) in each writ petition payable to the Member Secretary, Legal Services Authority, High Court of Andhra Pradesh, within a period of four weeks from today, in default of which the said Authority shall execute the order as a decree of Court. ________________ (V.V.S. RAO, J) _______________________________ (RAMESH RANGANATHAN, J) January , 2011 YS [1] W.P.No.26968 of 2010, dated 30.12.2010 [2] (1985) 1 All ER 842 : (1985) STC 144 [3] (1986) STC 65 [4] AIR 1966 SC 671 [5] AIR 1971 SC 1093 [6] (1988) 4 SCC 1