* THE HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE AND *HON’BLE MR JUSTICE RAMESH RANGANATHAN + W.P.No.8174 of 2009 % Dated 29-04-2009 # M/s.S.L.S.Power Ltd., Navalok Gardens, Nellore-524002 rep.by its Managing Driector Sri.Vemuri Chenchaiah …. Petitioner Vs. $. 1 Joint Commissioner (CT) Legal, Office of the Commissioner of Commercial Taxes,Second Floor, C.T.Building, M.J.Road, Nampally, Hyderabad and another …. Respondents ! Counsel for the petitioner: Sri G.Narendra Chetty ^ Counsel for the Respondents : Sri K.Raji Reddy, Special S.C. for Commercial Tax <GIST: > HEAD NOTE: ? Cases referred [1] (2008) 47 APSTJ 87 2 (2001) 33 APSTJ 206 3 (2007) 44 APSTJ 87 4 Judgment in WP No.7745 of 2007 dated 18.06.2007 5 Judgment in W.P. No.1229 of 2009 dated 11.02.2009 6 (2007) 5 VST 388 7 1994 (1) An.W.R. 450 (F.B) 8 AIR 1960 1960 SC 936 9 1990 (Supp) SCC 157 10 (1998) 8 SCC 1 11(2007) 9 SCC 593 12(2005)8 SCC 242 13(2005) 6 SCC 499 142006(2) SCC 269 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI ANIL R.DAVE, THE CHIEF JUSTICE and THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 8174 of 2009 Between: M/s.S.L.S.Power Ltd., Navalok Gardens, Nellore-524002 rep.by its Managing Driector Sri.Vemuri Chenchaiah ..... PETITIONER AND 1 Joint Commissioner (CT) Legal, Office of the Commissioner of Commercial Taxes,Second Floor, C.T.Building, M.J.Road, Nampally, Hyderabad 2 The Commercial Tax officer-III, R.R.Street Trunk Road,Nellore .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly in the nature of mandamus by declaring the action of the First respondent in passing the impugned Revisiion order in CCTs.Refg.No.LV(4)/342/2008 dated 17.2.2009 for the Assessment year 2003-04 APGST by rejecting the request for deferment of Revision Proceedings under wp(2A) of the AP General Sales Tax Act,1957, till disposal of the TA.No.462 of 2007 pending before the Sale Tax Appellate Tribunal Additional Bench, Visakhapatnam of the same petitioner on the same issue for the earlier Assessment year 2001-02 APGST as illegal, arbitrary unjustified and defeating the legislative will under section 20(2A) of the AP General Saes Tax Act, 1957 apart from being illegal on merits and set aside the same and pass Counsel for the Petitioner:MR.G.NARENDRA CHETTY Counsel for the Respondent No.: GP FOR COMMERCIAL TAX The Court made the following : THE HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No. 8174 of 2009 Order: (per Hon’ble Sri Justice Ramesh Ranganathan) The relief sought for in the writ petition is to declare the action of the first respondent in passing the impugned revision order dated 17.02.2009, for the assessment year 2003-04 (APGST), by rejecting the petitioner’s request for deferment of the revision proceedings under Section 20(2-A) of the Andhra Pradesh General Sales Tax Act, 1957 (for short ‘APGST Act’) till the disposal of T.A. No. 462 of 2007, pending before the Sales Tax Appellate Tribunal, Visakhapatnam, of the same petitioner on the same issue for the earlier assessment year 2001-02 (APGST), as illegal and unjustified and to set aside the same. Facts, in brief, are that the second respondent passed order dated 28.03.2007 for the assessment year 2003-04 levying tax on a turnover of Rs.5,85,02,837/-, under Section 6-A of the APGST Act, towards purchase of coal and fire-wood from unregistered dealers within the State. Aggrieved thereby, the petitioner preferred an appeal to the Appellate Deputy Commissioner (Commercial Tax), Guntur who, by order dated 01.10.2007, allowed the appeal. Thereafter the first respondent, exercising the powers of suo motu revision under Section 20 of the APGST Act, issued show cause notice dated 01.12.2008 proposing to revise the appellate order and to restore the assessment order of the second respondent on the ground that the purchase price under the APGST Act was inclusive of all expenses incurred by the dealer till the goods reached their premises. The petitioner filed its preliminary objections on 16.01.2009 contending that, since the same issue for the earlier assessment year 2001-02 (APGST) was pending adjudication before the Sales Tax Appellate Tribunal, Visakhapatnam, in T.A. No.462 of 2007, the first respondent should defer the revision proceedings till the disposal of T.A. No. 462 of 2007 in view of the bar under Section 20(2-A) of the APGST Act. The first respondent called upon the petitioner to file their objections to the show cause notice and, vide proceedings dated 19.01.2009, directed them to appear before him for a personal hearing. The petitioner filed its objections to the show cause notice and also appeared through counsel and submitted their written objections on 17.02.2009. Relying on a Division Bench judgment of this Court in Vorion Chemicals and Distillers Ltd., v. Commissioner of Commercial Taxes[1], the first respondent passed the impugned revisional order dated 17.02.2009 rejecting the petitioner’s request that the proposed revision be deferred till the disposal of the appeal pending before the Tribunal. The first respondent examined the contentions raised by the petitioner on merits and rejected the same. He confirmed the proposed revision for the assessment year 2003-04, set aside the order of the Deputy Commissioner, restored the original order of the Commercial Tax Officer dated 28.03.2007, and determined the net turnover as Rs.5,85,02,837/-. He held that the purchase turnover of Coal, Husk, Firewood etc., from unregistered dealers, under Section 6-A of the APGST Act, was to be subject to tax at 4%. Sri G. Narendra Chetty, learned counsel for the petitioner, would contend that, in view of the prohibition under Section 20(2-A) of the APGST Act, the power of revision under Section 20 (2) could not be exercised by the authority in respect of any issue or question which was the subject matter of an appeal before the appellate Tribunal under Section 21 of the APGST Act. Learned counsel would submit that the “issue or question”, as referred to in Section 20(2-A) of the APGST Act, related to issues or questions of fact or law and that the finding recorded by the first respondent, that the prohibition under Section 20(2-A) of the APGST Act applied only where issues or questions of law were the subject matter of appeal before the Tribunal, was perverse and necessitated interference in proceedings under Article 226 of the Constitution of India. According to the learned counsel, even issues of fact, if pending before the Tribunal, would attract the prohibition under Section 20(2-A) of the APGST Act and preclude the first respondent from passing any order till the appeal pending before the Tribunal was decided. According to the learned counsel the issue of fact, which was pending before the Tribunal in T.A. No.462 of 2007, was whether post purchase expenses incurred by the petitioner after the sale was completed at the vendor’s place formed part of the purchases and, therefore, liable to tax under Section 6-A of the APGST Act. Learned counsel would submit that, in view of the prohibition under Section 20(2- A) of the APGST Act, the impugned order of revision dated 17.02.2009 was without jurisdiction and was liable to be quashed. Learned counsel would submit that the Full Bench judgment of this Court, in Indo National Ltd., v. Commissioner of Commercial Taxes, Hyderabad[2], had been followed by a Division Bench of this Court in Jyothi Dairy Pvt. Ltd., Hyderabad v. Commercial Tax Officer, Jeedimetla Circle, Hyderabad and another[3]. Learned counsel would also rely on the Division Bench judgments of this Court in M/s. Soft Foam Industries (P) Ltd., v. The Additional Commissioner of Commercial Taxes, Hyderabad[4], a n d M/s. Voltas Limited v. The Assistant Commissioner (CT), Hyderabad[5]. He would submit that, Vorion Chemicals and Distillers Ltd.1, was a case wherein the Commissioner, while exercising his suo motu powers of revision under Section 20(1) of the APGST Act, had remanded the matter and that the present case was not an order of remand. Learned counsel would further contend that, even on merits, the impugned order of revision was liable to be set aside. On the other hand, Sri K. Raji Reddy, learned Special Standing Counsel for Commercial Taxes, would contend that the petitioner had an effective alternative remedy of an appeal to the Sales Tax Appellate Tribunal under Section 21 of the Act, without exhausting which they were not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, that the Full Bench, in Indo National Ltd.2, and the Division Bench, in Vorion Chemicals and Distillers Ltd.1, had held that it was only where issues or questions of law were pending adjudication before a Tribunal was the bar under Section 20(2-A) of the APGST Act applicable and, as the issue involved in T.A. No.462 of 2007 was one of fact, the first respondent had rightly held that pendency of T.A. No.462 of 2007 was not a bar for exercise of jurisdiction under Section 20 (2) of the APGST Act. Learned Special Standing Counsel would further contend that this Court, while exercising jurisdiction under Article 226 of the Constitution of India, would not sit in judgment over findings of fact recorded by the first respondent and that, on merits, the impugned order did not necessitate interference under Article 226 of the Constitution of India, since all these questions could as well be agitated before the Sales Tax Appellate Tribunal in an appeal preferred under Section 21 of the Act. In Jyothi Dairy Pvt. Ltd., Hyderabad3, it was not in dispute that the issue before the revisional authority was the one under consideration before the Tribunal in the petitioner’s case itself. The Division Bench, following the judgment of the Full Bench in Indo National Ltd.2, and the Division Bench judgment in Vensa Biotek Limited v. Commissioner of Commercial Taxes, Hyderabad[6], held that, when a matter was pending before the Sales Tax Tribunal and a revision was initiated by the authority under the Act, if a request was made by the assessee to stay the revision till the disposal of the appeal, in view of the mandate of Section20 (2-A), stay should invariably be granted. The impugned order was set aside, the proceedings before the revisional authority was restored and the respondents were directed to keep the matter pending till the appeal before the Tribunal was decided. In M/s. Soft Foam Industries (P) Ltd.4, the Division Bench noted that the issue pending before the revisional authority, whether the petitioner was liable to pay interest on certain liability or not, was the same issue pending adjudication before the Tribunal. As this was evidently an issue of law, and not of fact, the Division Bench, following Indo National Ltd.2, allowed the writ petition, set aside the order of the revisional authority and directed that the matter be kept pending before the revisional authority till the appeal before the Tribunal was finally decided. In M/s. Voltas Limited5, the writ petition was filed to declare the notice issued by the Joint Commissioner (CT) Legal, rejecting the petitioner’s request for deferment of revision proceedings, as arbitrary and illegal. The petitioner therein had preferred an appeal, against the order of the Assistant Commissioner (CT), before the Deputy Commissioner who remanded the matter back to the Assistant Commissioner (CT). While matters stood thus, the Joint Commissioner issued a show cause notice proposing to revise the order of the appellate authority. When similar orders in revision were passed, for the assessment years 2002-03 and 2003-04, the petitioner had filed writ petitions and this Court had passed interim orders of stay. The petitioner had contended before this Court that the question of law involved in the revision was pending adjudication before this Court. This Court observed that, in view of the pendency of the writ petitions, the request of the petitioner for deferment of the revision proceedings, pending adjudication of the writ petitions, was reasonable. While directing the petitioner to file its objections, if any, to the show cause notice, this Court directed the respondents not to pass final orders till the disposal of the writ petitions. The scope of Section 20(2-A) of the APGST Act did not arise for consideration in M/s. Voltas Limited5, and, as such, is of no assistance to the petitioner herein. Even otherwise, the effect of a binding precedent is that a Single judge of a High Court is bound by the judgment of another Single judge and a fortiori judgments of Benches consisting of more judges than one. So also, a Division Bench of a High Court is bound by judgments of another Division Bench and a Full Bench. Division Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction, or of a Full Bench, merely because they hold a different view on the question of law for the reason that certainty and uniformity in the administration of justice are of paramount importance (Commissioner of Income Tax v. M/s. B.R. Constructions, Hyderabad[7]). If one thing is more necessary in law than any other, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start ignoring or overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion (Mahadeolal Kanodia v. Administrator General of W.B[8]; Shridhar v. Nagar palika, Jaunpur[9]). As the Full Bench Judgment, in Indo National Ltd.2, would bind us, it is useful to extract the relevant paragraphs therefrom. The Full Bench observed thus:- “………….Sub-section (1) of Section 20 is no doubt of wide amplitude. But the revisional power of the Commissioner in terms of Sub-section (1) or sub-section (2) is sought to be curtailed by reason of Sub-section (2-A). The phraseology used in Sub- section (2-A) of Section 20 of the Act is absolutely clear and unambiguous, in terms whereof, a bar has been created to entertain any application in respect of ‘any issue or question’ which was the subject matter of an appeal or which was decided in appeal by the Appellate Tribunal under Section 21. There cannot be any dispute that in the hierarchy of authorities provided for under the Act, the Appellate Tribunal is superior to the Commissioner of the Commercial Taxes. Irrespective of the fact as to whether principles of res judicata will be applicable or not, we are of the opinion that the said provision creates a bar in the exercise of the revisional jurisdiction by the Commissioner if the issue or question has already been decided by the Appellate Tribunal in relation to the earlier assessment year. A distinction must be borne in mind that had the intention of the Legislature been otherwise, the same could have been specified in explicit language as was done in Section 264(4)(c) of the Income Tax Act. The words “issue or question” are of wide amplitude. An issue or question may arise in relation to the self same assessee in respect of any assessment year or it may arise after some years in relation to some other assessee. If such issue or question was the subject matter of appeal before the Appellate Tribunal or if it has been decided by the Appellate Tribunal under Section 21, evidently, on a plain reading of sub-section (2A) of Section 20, the same cannot be the subject matter of revision under Sub-section (1) of Section 21 of the Act. Furthermore, judicial and administrative discipline demands that inferior authority must act in terms of the decision of a superior authority…………….” “………….A question or issue may be on fact or in law. Where it involves a question or issue as of fact, the same may be held to be confined to that particular order and in relation to another assessment year, the fact may be different. But, if the issue or question relates to a point of law, the intention of the Legislature appears to be that the assessee should not be vexed on such question again and again. As indicated hereinbefore if a question or issue decided by the appellate Tribunal is in conflict with the decision of High Court or the Supreme Court, naturally, the latter will prevail. But unless so done, the Commissioner, on a plain reading of the aforementioned provisions, must be held to be bound by such decision of the Tribunal on question of law. A liberal meaning has normally to be attributed while interpreting a statute…………” (emphasis supplied) The law laid down by the Full Bench of this Court in Indo National Ltd2, as is evident from the afore extracted observations, is that, if the question or issue is of a fact, the same may be confined to that particular order but if the issue or question related to a point of law, the intention of the Legislature appeared to be that the assessee should not be vexed on such a question again and again and the bar under Section 20(2-A) would apply. Following the Full Bench judgment in Indo National Ltd.2, a Division Bench of this Court, in Vorion Chemicals and Distillers Ltd.1, held that, since the order of remand was only on a question of fact, and not of law, Section 20(2-A) did not prohibit the revisional authority from passing such an order merely because an issue of law relating to the same assessee had been decided by the Tribunal earlier. In the impugned order dated 17.02.2009, the Joint Commissioner held that the questions (1) whether a particular turnover was exclusive of freight or not; (2) whether the purchase price relating to the purchases made from unregistered dealers should include all expenses including freight for the purpose of levy of tax and (3) whether the agreement of purchase with the unregistered dealers stipulated delivery of the goods at the premises of the dealer or at the premises of the seller, were questions of fact to be decided with reference to documentary evidence of that particular case and for that particular year. The Joint Commissioner held that, since the questions which arose for consideration in the revision were questions of fact, Section 20(2-A) did not prohibit him from revising the order of the appellate Deputy Commissioner for the assessment year 2003-04. These conclusions of the Joint Commissioner cannot be characterized as perverse. This Court, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, would neither sit in appeal over such findings recorded by the first respondent nor would it substitute its conclusions for that of his. The bar under Section 20(2-A) of the APGST Act does not apply in the facts and circumstances of the present case. It is no doubt true that, in situations where the writ petition is filed for enforcement of fundamental rights or where there has been violation of principles of natural justice or where the order is wholly without jurisdiction or the vires of an Act is challenged the High Court would not, ordinarily, relegate the parties to the alternative remedy available under the Statute. (Whirlpool Corpn. vs. Registrar of Trade Marks[10]; Popcorn Entertainment vs. City Industrial Development Corporation[11], Sanjana M. Wig Vs. Hindustan Petroleum Corpn. Ltd[12]; State of H.P. Vs. Gujarat Ambuja Cement Ltd[13] and L.K. Verma. Vs. HMT Ltd.[14]). As the bar under Section 20(2-A) would not apply, in the facts and circumstances of the present case, it cannot be said that exercise of powers by the Joint Commissioner under Section 20 (2) of the APGST Act is without jurisdiction. It is not even the case of the petitioner that the impugned order is in violation of principles of natural justice nor is the vires of any statutory provision under challenge in this writ petition. The petitioner has an effective alternative remedy, of an appeal to the Sales Tax Appellate Tribunal under Section 21 of the APGST Act, without exhausting which they have invoked the jurisdiction of this Court under Article 226 of the Constitution of India. In view of the existence of an alternative remedy, we see no reason to express any opinion on the submission made by the learned counsel on the merits of the impugned order. Leaving it open to the petitioner to avail the alternative remedy of an appeal to the Sales Tax Appellate Tribunal, the writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. ___________________ ANIL R. DAVE, CJ. ______________________________ RAMESH RANGANATHAN, J. April 2009 Asp/Nsr LR copy to be marked [1] (2008) 47 APSTJ 87 [2] (2001) 33 APSTJ 206 [3] (2007) 44 APSTJ 87 [4] Judgment in WP No.7745 of 2007 dated 18.06.2007 [5] Judgment in W.P. No.1229 of 2009 dated 11.02.2009 [6] (2007) 5 VST 388 [7] 1994 (1) An.W.R. 450 (F.B) [8] AIR 1960 1960 SC 936 [9] 1990 (Supp) SCC 157 [10] (1998) 8 SCC 1 [11] (2007) 9 SCC 593 [12] (2005)8 SCC 242 [13] (2005) 6 SCC 499 [14] 2006(2) SCC 269