IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.7.2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.14438 of 2008, W.P.No.26677 of 2008, W.P.No.5299 of 2009, & W.P.Nos.13995,13996,13997 and 13998 of 2008 W.P.No.14438 of 2008: M/S.VASANTHI AGNECIES THROUGH ITS AUTHORISED SIGNATORY PALANIAPPAN NO.1, E.C.R. ROAD, MUDALIARPET, THENGAITHITTU, PUDUCHERRY. ..Petitioner in WP 14438/08, 26677/08 Vs 1 THE COMMERCIAL TAX OFFICER II COMMERCIAL TAX DEPARTMENT PONDICHERRY. 2 THE APPELLATE ASSISTANT COMMISSIONER COMMERCIAL TAXES DEPARTMENT PONDICHERTY. ..Respondents in WP 14438/08, 26677/08 WP NO.5299 of 2009 S.KATHIRESAN ..PETITIONER -VS- 1.THE ADDITIONAL DEPUTY COMMERCIAL TAX OFFICER II, COMMERCIAL TAX DEPARTMENT, PUDUCHERRY 2.THE APPELLATE ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, PUDUCHERRY https://hcservices.ecourts.gov.in/hcservices/ 3 THE UNION TERRITORY OF PUDUCHERRY REPRESENTED BY ITS SECRETARY TO GOVERNMENT COMMERCIAL TAXES DEPARTMENT PUDUCHERRY. ..RESPONDENTS WP Nos.13995 TO 13998 of 2008 M.GANESAN ..PETITIONER -VS- 1 THE COMMERCIAL TAX OFFICER II COMMERCIAL TAX DEPARTMENT PONDICHERRY. 2 THE APPELLATE ASSISTANT COMMISSIONER COMMERCIAL TAXES DEPARTMENT PONDICHERTY. ..RESPONDENTS Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of declaration declaring the second proviso to sub Section 1 of Section 34 of Pondicherry General Sales Tax Act [as amended by Amendment Act 4 of 2000] in so far as it demands 25% of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant as a condition precedent for preferring appeal under the said provision, as arbitrary, onerous, oppressive and invalid (in WP No.26677 of 2008) and consequently declare the order dated 2.6.2008 of the 2nd respondent in Proceeding in Ref.No.1056 to 1061/APRR/2008/AAC issued under the said provision as illegal and consequently direct the 2nd respondent to entertain the said appeals of the petitioner without insisting the said 25% amount. (in WP No.14438 of 2008) Prayer : Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of declaration declaring second proviso to sub section 1 of Section 34 of the Pondicherry General Sales Tax Act (as amended by Amendment Act 4 of 2000) in so far as it demands 25% of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant as a condition precedent for preferring appeal under the said provision as arbitrary, onerous, oppressive, unconstitutional and invalid and consequently direct the second respondent to entertain the said appeals of the petitioner without insisting the said 25% amount. (in WP No.5299 of 2009) Prayer : Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of declaration declaring second proviso to sub section 1 of Section 34 of Pondicherry General Sales Tax Act 1967 as amended by Amendment Act 4 of 2000) in so far https://hcservices.ecourts.gov.in/hcservices/ as it demand 25% of the difference of the tax assessed by the assessing authority and tax admitted by the appellant as a condition precedent for preferring appeal under the said provision as arbitrary, onerous, oppressive and invalid and consequently declare the order dated 12.05.2008, of the 2nd respondent in proceedings in Ref. Nos.6,9,8,7/APRR/2008/AAC, issued uner the said provision as illegal and consequently direct the 2nd respondent to entertain the appeals of the petitioners without insisting the said 25% amount. (in WP Nos.13995 to 13998/08) W.P.No.14438 & 26677 of 2008 and W.P.Nos.13995 to 13998 of 2008: For petitioner : Mr.V.R.Shanmuganathan For respondent : Mr.T.P.Manoharan Special Government Pleader (Pondy) W.P.No.5299 of 2009: For petitioner : Mr.S.Raveekumar For respondent : Mr.T.P.Manoharan Special Government Pleader (Pondy) C O M M O N O R D E R Since, the issues involved in all the writ petitions are similar in nature, these writ petitions are taken up together and a common order is being passed. 2. The above writ petitions had been filed praying for writs of declaration declaring the second proviso to sub-section (1) of Section 34 of the Pondicherry General Sales Tax Act, 1967, as amended by the Amendment Act 4 of 2000, insofar as it demands 25% of the difference of the tax assessed by the assessing authority and the tax admitted by the appellants, as a condition precedent for preferring an appeal under the said provisions, as arbitrary and invalid. 3. The main contention of the learned counsels appearing for the petitioners is that the amendment in question, introduced in the second proviso to sub-section (1) of Section 34 of the Pondicherry General Sales Tax Act, 1967, takes away the discretion vested with the appellate authority concerned to issue appropriate directions, as he thinks fit, with regard to the payment of tax by the appellants, before the disposal of the appeals. 4. Per contra, the learned Special Government Pleader appearing on behalf of the respondents had submitted that a number of orders had been passed by this Court, in similar matters, dismissing the https://hcservices.ecourts.gov.in/hcservices/ writ petitions by holding that the amendment in question is valid. One of such orders had been passed by this Court, on 30.4.2009, in W.P.Nos.26676, 43880 and 43881 and 3185 of 2009, (M/S.VASANTHI AGENCIES, THROUGH ITS AUTHORISED SIGNATORY, PALANIAPPAN AND OTHERS Vs. THE COMMERCIAL TAX OFFICER-II, COMMERCIAL TAX DEPARTMENT, PUDUCHERRY AND ANOTHER), based on the decision, reported in TEHARALI INDUSTRIES CASE (2006 (147) STC 249) and in ROYAL INSULATION PRIVATE LIMITED CASE (2006 (147) STC 246). 5. The learned counsel had further submitted that there are no contradictions between the existing provisions, in Section 34 of the Pondicherry General Sales Tax Act, 1967, and the newly introduced amendment, by the Amendment Act 4 of 2000. The discretion vested with the appellate authority, with regard to the payment of tax by the appellants had not been diluted or taken away, as alleged by the petitioners. The amendment introduced by way of the Amendment Act 4 of 2000 is to be read along with the existing provisions of Section 34 of the Pondicherry General Sales Tax Act, 1967. 6. He had further submitted that a number of orders had been passed by the various Division Benches of this Court holding that the amendment introduced in Section 34 of the Pondicherry General Sales Tax Act, 1959, is valid. 7. The learned counsels appearing on behalf of the petitioners had submitted that the observations made by the Supreme Court in its decision, in MARDIA CHEMICALS LTD ETC., Vs. UNION OF INDIA AND ORS ETC., (2004 (3) SUPREME 243), with regard to the validity of the special provisions of law, as a speedier legal method to recover the dues of the banks and other financial institutions, would not be applicable to the present case. 8. The learned Special Government Pleader appearing on behalf of the respondents had relied on the decision of this Court, in K.M.CORPORATION AND ANOTHER Vs. STATE OF TAMIL NADU AND OTHERS (2008) 11 VST 782 (MAD)., wherein, the amendment introduced to Section 31 of the Tamil Nadu General Sales Tax Act, 1959, by the Tamil Nadu Act 14 of the 1999, which is similar to the amendment introduced to Section 34 of the Pondicherry General Sales Tax Act 1967, had been held to be valid. 9. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and in view of the decisions cited supra, this Court is of the considered view that the amendment introduced in Section 34 of the Pondicherry General Sales Tax Act, 1967, by the amendment Act 4 of 2000, cannot be held to be invalid. 10. It cannot be said that the amendment in question contravenes the existing provisions of law, by taking away the discretion vested https://hcservices.ecourts.gov.in/hcservices/ with the appellate authority, under Section 34 of the Pondicherry General Sales Tax Act, 1967, with regard to the payment of tax by the appellants concerned. 11. The petitioners have not been in a position to show that the amendment introduced, in section 34 of the Pondicherry General Sales Tax Act, 1967, is ultra vires and unconstitutional. Further, a number of orders had already been passed by this Court holding that the amendment in question is valid in the eye of law. 12. In such circumstances, this Court finds it appropriate to dismiss the writ petitions, as they are devoid of merits. Hence, the writ petitions are dismissed. No costs. Connected M.P.Nos.1,1,1,1,1 of 2008 and M.P.No.1 of 2009 are closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar lan To: 1 THE COMMERCIAL TAX OFFICER II COMMERCIAL TAX DEPARTMENT, PONDICHERRY. 2 THE APPELLATE ASSISTANT COMMISSIONER COMMERCIAL TAXES DEPARTMENT, PONDICHERTY. 2 ccs To Mr.V.R.Shanmuganathan, Advocate, SR.42888 1 cc To The Government Pleader, SR.42158 1 cc To Mr.M.Raveekumar, Advocate, SR.42210 order in W.P.No.14438 of 2008, W.P.No.26677 of 2008, W.P.No.5299 of 2009, & W.P.Nos.13995,13996,13997 and 13998 of 2008 VD (CO) RH (9.8.11) https://hcservices.ecourts.gov.in/hcservices/