1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.04.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD)Nos.60 and 61 of 2011 and M.P.(MD) Nos.1 and 1 of 2011 Sri Ram Candles, Rep. by its Prop. R.Renganathan, 51, Park East Street, Kovilpatti-628 501, Tuticorin District. : Petitioner in both cases Vs 1.The Commercial Tax Officer, Kovilpatti 1 Assessment Circle, Kovilpatti - 628 501, Tuticorin District. 2.The State Chief Information Commissioner, The Kamadhenu Co-operative Supermarket Building, 1st Floor, Teynampet (Near Vanavil), Old No.273, New No.378, Anna Salai, Chennai - 600 018. : Respondents in both cases Prayer in both W.Ps.: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the order passed by the first respondent in his revision proceeding in Assessment No.TNGST 5861647/2003-04, and TNGST 5861647/2004-05 dated 30.06.2010 received by the petitioner on 08.11.2010 and quash the same and to direct the first respondent to make the revision of assessment proceeding for the assessment years 2003-04 and 2004-05 following his D3 deviation proposals submitted to his higher authorities in his letter TNGST 5861627/2003-04 and 2004-05 dated 16.06.2009. For petitioner : M/s.A.S.Mujibur Rahman For respondents : Mr.S.C.Herald Singh Government Advocate COMMON ORDER Since the issue involved in these Writ Petitions is one and the same for the two assessment years, these Writ Petitions are taken up together and decided by a common order. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The only point raised by the petitioner is that the petitioner is a manufacturer of candles and according to him, candles are exempted from the liability of sales tax since they fall under Serial No.13 of III schedule of Tamil Nadu General Sales Tax Act, 1959. For manufacturing of candles, the raw material is paraffin wax which is purchased from Chennai Petroleum Corporation Ltd., Chennai by paying 3% sales tax and surcharge thereon and since from out of this, the candles are manufactured, he is eligible for exemption. When the Enforcement Authorities, Kovilpatti, inspected the place of business on 17.12.2004, the petitioner was not present. No stock of wax or candles was available. But, the petitioner's brother gave a statement stating that the petitioner purchased the raw material viz., wax, which was sold to the unregistered dealers within Tamil Nadu. According to the petitioner, the statement was not made by the petitioner's brother but signed in the written form given by the authorities. Therefore, the assessment based on the statement that they sold only wax and not candle is wrong. 3. Earlier, he filed a writ petition in W.P.No.11036 of 2005 challenging the collection of advance tax and compounding fees. This Court passed an order directing the petitioner to make a representation to the respondent and on receipt of the same, the respondent shall consider the same and pass orders. Subsequent to that, the petitioner made a representation to the respondent on 22.12.2005 for refund of advance tax and compounding fees paid by him. As it was not considered by the respondent, the petitioner filed a writ petition in W.P.(MD) No.3221 of 2006 for refund. Thereafter, the respondent issued the refund. As per the notice dated 18.04.2007, the petitioner should have been levied tax surcharge and penalty under Section 23 in both the cases as follows: Sales turnover for the year 2003-04 : Rs.11,90,500.00 Difference of Tax @ 9% : Rs. 1,07,145.00 Surcharge @ 5% : Rs. 5,357.00 4. On receipt of the notice, the petitioner made a representation on 16.05.2007 requesting one month time for submitting his reply. Thereafter, he was asked to produce notebooks for verification on or before 21.12.2008. In the meanwhile, the petitioner made a representation on 04.06.2007 under the Right to Information Act, 2005, seeking production of certain documents and that application was rejected. Thereafter, he filed an appeal to the Assistant Commissioner(C.T), Tuticorin, which was also rejected. Challenging the said appeal, he further filed an appeal to the second respondent viz., the State Chief Information Commissioner, on 19.09.2007, and the same is pending in spite of his reminder. Therefore, he could not give proper reply. As the reply would determine the fate of his defence which is to be received under the Right to Information Act and therefore, he would only contend that the assessment be kept pending. As per his notices, the assessment https://hcservices.ecourts.gov.in/hcservices/ 3 should be kept pending till he gets necessary orders from the State Information Commissioner, but, the authority did not give time for the same and has passed the impugned orders assessing tax which is per se illegal and therefore, this order itself is vitiated. Further, he would also contend that even though there is an alternative remedy by way of an appeal as against the final assessment order, that is not a bar for filing the writ petition as the principles of natural justice have been violated. Therefore, this writ petition is maintainable as per the decision of the Supreme Court reported in 142 STC 1 SC (State of H.P. and others v. Gujarat Ambuja Cement Ltd., and another) and as per the Division Bench judgment of this Court in W.A.Nos.614, 615 and 616 of 2005 (Sakthi Masala (P) Ltd., and others v. Special Commissioner and Commissioner of Commercial Tax and another). Therefore, he would contend that both the writ petitions are to be allowed. 5. Even at the time of admission, it is specifically pointed out that the petitioner who has now challenged the order of the Assessing Officer is an appealable order. The only argument put forth by the petitioner was that he had filed an application before the authorities under the Right to Information Act, 2005, to get some records to submit his reply to the assessment order. But, this was not done. In fact, he had applied as early as on 04.06.2007 and that was rejected against which he had preferred an appeal to the Assistant Commissioner which was also rejected and challenging the said rejection, he had further filed an appeal before the second respondent viz., the State Chief Information Commissioner, on 19.09.2007 and according to the petitioner, the same is pending in spite of his reminders. Therefore, he could not give a proper reply. 6. In this context, it is also pertinent to point out when we see the assessment order, earlier, a notice was issued to the petitioner calling upon his explanation, for which, the petitioner, as early as on 16.05.2007, sent a letter requesting one month time for submitting his reply. Thereafter, he was asked to produce note books for verification, on or before 21.12.2008. In the meanwhile, he has made a representation. Therefore, right from the beginning, he has not only chosen to give any reply but has also taken umbrage only on the ground that his request for granting of documents was not complied with. In fact, certain documents have already been given which are also produced in the typed set of papers. In spite of the same, the petitioner has adamantly refused to give any explanation to the notice. Therefore, only on the basis of no reply and taking into consideration the available records and evidence put forward, the assessing authority has passed a detailed order in which they have held that the assessee has only sold wax instead of candles. The petitioner has not even produced his account books. 7. Under those circumstances, when the petitioner has got a right of appeal, the only recourse is to file an appeal. Avoiding https://hcservices.ecourts.gov.in/hcservices/ 4 the appeal, the present writ petition has been filed on the ground that the principles of natural justice have been violated. The petitioner could not point out any one reason as to how the principles of natural justice have been violated. Whereas, even from the impugned order, it is clear that the petitioner gave a reply even as early as on 28.06.2007 and 20.07.2007 and further, even in their letter dated 23.06.2010, they have requested certain information from the State Chief Information Commissioner, Chennai, and the same has not been received. The assessment itself was over only on 30.06.2010. Right from 20.07.2007, the information as sought by the petitioner, according to the respondents, has been furnished but the petitioner has not even chosen to reply. That being the case, it can be held that the petitioner has not made out any case for his contention that principles of natural justice have been violated. But, in support of his contention, the learned counsel for the petitioner has relied on the following judgments: (1) 2007-08 (13) TNCTJ 39 (Sakthi Masala (P) Ltd., and others v. Spl. C.C.T. and another). (2) 142 STC 1 SC (State of H.P. and others v. Gujarat Ambuja Cement Ltd., and another). (3) [2006] 148 STC 144 (SC) (Star Paper Mills Ltd., v. State of U.P.). (4) W.P.(MD)No.7328 of 2006 (M/s.Sholay Fire Works v. The Special Commissioner and Commissioner of Commercial Taxes and another). 8. The question that arises for consideration of this Court is as to whether the writ petitions filed under Article 226 of the Constitution of India are maintainable, when there is an appeal remedy available. No doubt, this Court has held on many occasions the merely because there is an appeal remedy, that by itself would not be a bar for filing the writ petition. In the case of Sakthi Masala (P) Ltd., and others v. Spl. C.C.T. and another reported in 2007-08 (13) TNCTJ 39, a Division Bench of this Court, in paragraph 29, held as follows: "29. It is not in dispute that writ petition under Article 226 is not maintainable, when efficacious alternative remedy is available to the aggrieved assessee. In the instant case, the learned Senior Counsel appearing for the appellants contended that prior to the completion of the sales tax assessment for the year 2002-03, admittedly, the respondents by way of clarification intimated that the sales tax for bajji, bonda mix and ginger coriander mix at 4%, but after the assessment was completed, by way of https://hcservices.ecourts.gov.in/hcservices/ 5 subsequent clarification, dated 18.05.2004, the respondents issued notice demanding the sales tax at 16%, based on the subsequent circular issued by the first respondent and therefore, on account of the pre-conclusion by the superior authority, namely, the first respondent, there cannot be any efficacious alternative remedy and hence, we are of the considered view that the writ petitions are legally maintainable." In the above said case, the writ petition was maintainable only because the authority has pre-concluded the issue and there was no point in going for alternative remedy. Whereas, here it is not the case. In spite of repeated requests, the petitioner has not chosen even to reply and it is a clear case of dragging on the proceedings. Therefore, the authority is well within the limit in passing the impugned order. 9. As far as the judgment reported in 142 STC 1 SC (State of H.P. and others v. Gujarat Ambuja Cement Ltd., and another) is concerned, when there is non-compliance with provisions of Act or Rules or Notification, the Hon'ble Supreme Court has categorically held that if it comes to the conclusion that the petitioner seeks enforcement of a fundamental right, if there is failure of principles of natural justice, or the orders or proceedings are wholly without jurisdiction, or the virus of an Act is challenged only then, the alternative remedy is not a bar. As stated supra, in this case, they are not able to pin point any violation of principles of natural justice so as to attract the petitioner to invoke the Article 226 of the Constitution of India. 10. Similarly, in the case of Star Paper Mills Ltd., v. State of U.P. reported in [2006] 148 STC 144 (SC), the Hon'ble Supreme Court has categorically held that normally the High Court should not interfere if there is an adequate efficacious alternative remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. It is not also the case here. 11. In yet another decision taken by this Court in order dated 28.01.2011 passed in W.P.(MD)No.7328 of 2006 (M/s.Sholay Fire Works v. The Special Commissioner and Commissioner of Commercial Taxes and another), it has been held that the order was passed without taking into consideration, the objections filed by the petitioner and there is no reference to any of the objections raised to the documents furnished by the assessee. Therefore, this Court held that it is apparent that the objections were not considered. Under the above special circumstances, the writ petition was entertained. Whereas, in the case on hand, the petitioner is not able to substantiate his case. Therefore, definitely, it is not a special case to invoke the https://hcservices.ecourts.gov.in/hcservices/ 6 extraordinary jurisdiction in spite of availability of alternative remedy contemplated under the Act. Successfully, the petitioner has been dragging on the case from the year 2007. Therefore, the writ petitions are not maintainable. Hence, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To 1.The Commercial Tax Officer, Kovilpatti 1 Assessment Circle, Kovilpatti - 628 501, Tuticorin District. 2.The State Chief Information Commissioner, The Kamadhenu Co-operative Supermarket Building, 1st Floor, Teynampet (Near Vanavil), Old No.273, New No.378, Anna Salai, Chennai - 600 018. +2cc to Mr.A.S.Mujibur Rahman, Advocate, Sr.No.16087 abd 16088 +one cc to Special Government Pleader, Sr.No. 16251 Order made in W.P.(MD)Nos.60 and 61 of 2011 29.04.2011 srm SMA/19.05.2011/6C/6P https://hcservices.ecourts.gov.in/hcservices/