1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.11.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD)No.984 of 2011 and M.P.(MD)No.1 of 2011 Mallika Traders, Sattur, rep.by its Proprietrix Mallika, Main Road, Sattur, Virudhunagar District. ... Appellant/Petitioner Vs. The Deputy Commercial Tax Officer, O/o.the Deputy Commercial Tax Officer, Sattur, Virudhunagar District. ... Respondent/Respondent Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 22.08.2011, made in W.P.(MD) No.2384 of 2008. W.P.(MD)No.2384 of 2008: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari, to call for the records on the file of the respondent herein, in TNGST 5780683 dated 27.02.2008 and quash the proceedings of the respondent. For Appellant : Mr.A.S.Mujibur Rahman For Respondent : Mr.V.Pandi, Government Advocate JUDGMENT [Judgment of the Court was delivered BY K.N.BASHA, J] The appellant has come forward with this appeal challenging the order of the writ court, dated 2.08.2011, made in W.P.(MD)No.2384 of 2008, dismissing the writ petition filed by the appellant challenging the order of the respondent, dated 27.02.2008, cancelling the Registration Certificate issued to the appellant under T.N.G.S.T. Act, 1959 stating non-payment of additional security deposit. 2. Mr.A.S.Mujibur Rahman, learned counsel for the appellant, would vehemently contend that the writ court dismissed the writ petition on two grounds, namely (i)that the earlier writ petition filed by the appellant was got dismissed as withdrawn unconditionally and not as infructuous; and (ii) that the appellant cannot challenge https://hcservices.ecourts.gov.in/hcservices/ 2 the impugned order by filing another writ petition by opening the closed matter. It is pointed out by the learned counsel for the appellant that the finding of the writ Court is not correct as the earlier writ petition was dismissed by this Court only on the basis of the endorsement made by the appellant's counsel to the effect that the said writ petition has become infructuous and not on the ground of unconditional withdrawal. It is contended that once the first finding is not sustainable, the second ground is also untenable as the appellant is entitled to challenge the present impugned order passed by the respondent on the very ground of dismissal of the earlier writ petition, without looking into the matter and considering the objections of the appellant to the effect that as per the assessment order, dated 09.08.2006, there is no need to pay additional security deposit. It is contended that only in the event of liability of dues to be paid by the appellant, as per the Assessment Order, the question of paying additional security would arise. Therefore, it is contended that the impugned order is liable to be quashed. 3. Heard Mr.V.Pandi, learned Government Advocate, on the submissions made by the learned counsel for the appellant. It is contended by him that there is no infirmity or illegality in the impugned order passed by the writ court as well as the order passed by the respondent herein. He would further contend that the remedy available to the appellant is only to move the authorities concerned. 4. We have carefully considered the rival submissions made by both sides and perused the materials available on record, including the order of the writ court and the impugned order passed respondent herein. 5. At the outset, it is to be stated that the writ court has dismissed the writ petition mainly on the ground that the appellant had withdrawn the earlier writ petition unconditionally and not on the ground that it has become infruuctuous. A perusal of the earlier order passed by this Court dated 12.07.2007 in W.P.(MD)No.308/2005 would make it abundantly clear that the learned counsel for the appellant has made an endorsement to the effect that he was withdrawing the writ petition as it has become infructuous and on the basis of the said endorsement, the order was passed permitting the appellant to withdraw the writ petition, which reads hereunder: "The learned counsel for the petitioner seeks permission of this Court to withdraw this writ petition as it becomes infructuous and he has also made an endorsement to that effect. 2. Recording the same, the writ petition is dismissed as withdrawn. When the writ petition is allowed to be withdrawn, the incidental prayer sought for in the miscellaneous petition cannot be granted. Hence, the miscellaneous petition is also dismissed. ..." https://hcservices.ecourts.gov.in/hcservices/ 3 A reading the above said order passed by this Court on 12.07.2007 in WP(MD)No.308/2005 would make it abundantly clear that the earlier writ petition was withdrawn only on the ground that it has become infructuous and not the same was withdrawn unconditionally. Therefore, what is to be considered is the impugned order passed by the respondent herein, dated 27.02.2008. 6. It is pertinent to note that the impugned order reveals that the appellant has not paid additional security deposit and as such the registration certificate was cancelled. It is further seen that the respondent has referred to about the dismissal of the said writ petition on the ground of withdrawal and only on that ground the respondent has passed the impugned order without considering the merits and objections raised by the appellant. Further, it is the categorical assertion of the appellant to the effect that as per the assessment order passed by the respondent dated 09.08.2006, there is no liability on the part of the appellant and such being the position, the question of paying additional security deposit does not arise. We are able to see much force on such a contention put- forward by the learned counsel for the appellant. As the perusal of the assessment order dated 09.08.2006 would make it crystal clear that there is absolutely no dues to be paid by the appellant, it is rightly contended that the question of payment of additional security deposit would not at all arise. All these aspects, as pointed out earlier, have been totally ignored and overlooked by the respondent herein. 7. In view of the above factors, this Court is constrained to set aside the order passed by the writ court as well as the impugned order, dated 27.02.2008, passed by the respondent herein. Consequently, the matter is remitted back to the respondent with a direction to reconsider the matter on the basis of the assessment order passed by him on 09.08.2006, by affording an opportunity to the appellant and pass orders on merits and in accordance with law, within a period of twelve weeks from the ate of receipt of a copy of this order. No costs. Connected M.P.(MD)No.1 of 2011 is closed. Sd/- Assistant Registrar (Crl.Side) /True Copy/ Sub Assistant Registrar To: The Deputy Commercial Tax Officer, O/o.the Deputy Commercial Tax Officer, Sattur, Virudhunaggar District. +1 CC to Mr.A.S.Mujibur Rahman, Advocate (SR.No.37924) Judgment in W.A.(MD)No.984/2011 and M.P.(MD)No.1 of 2011 Dated:03.11.2011 gb NSV/18.11.11/3P/3C https://hcservices.ecourts.gov.in/hcservices/