IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.01.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.Nos.33851 and 33852 of 2007 M.P.Nos.1, 1, 2 and 2 of 2007 M/s.K.Parthasarathy Spinning Mills, Rep. By its Managing partner, P.Gopalakrishnan ... Petitioner in both W.Ps. vs. 1. The Commissioner of Commercial Taxes, Chepauk, Chennai-5. 2. The Commercial Tax Officer, Udumalpet (North), Udumalpet. ... Respondents in both WPs. Writ petitions are filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in his proceedings No.M3/16892/2007, dated 05.09.2007, quash the same and further direct the first respondent to dispose of the petition filed by the petitioner under Section 16-D of the Act, dated 18.10.2004 afresh in accordance with law. For Petitioner : Mr.R.Hemalatha For Respondents : Mr.R.Mahadevan, Addl. Govt. Pleader O R D E R The petitioner is a manufacturer of cotton yarn and an assessee on the file of the Commercial Tax Officer, Udumalpet (North), Udumalpet, the second respondent, both under TNGST and CST Acts. The petitioner was assessed to tax under the best of judgment assessment and challenging the same, they have filed separate applications before the Special Committee under Section 16-D of the Tamil Nadu General Sales Tax Act (in short "TNGST Act"). The first respondent has rejected the said applications and aggrieved by the same, the petitioner has filed the present Writ Petitions. 2. Since common question of law and facts are involved in both the Writ Petitions, they are taken up together and disposed of by a common order. 3. Brief facts leading to W.P.No.33852 of 2007 are as follows: During the assessment year 2001-02, the petitioner reported a total and taxable turnover of Rs.3,13,82,697/- and Rs.2,49,283/- respectively by way of monthly returns in Form A-1 under the TNGST Act. The petitioner's mill was under lockout due to strike for the period between 06.04.2002 and 31.05.2004 and during the strike period, no one was allowed inside the factory premises. On 11.10.2002, the second respondent issued summons to the petitioner to produce books of accounts on 29.10.2002 and since the Mill was under lockout, the petitioner could not produce the books of accounts. Without giving further opportunity, the second respondent has passed the best of judgment assessment in his proceedings in TNGST No.2480478/2001-02, dated 16.12.2003 by determining the total and taxable turnover as Rs.3,13,82,697/- and Rs.3,13,82,697/- respectively. It is the grievance of the petitioner that prior to passing of best of judgment assessment, no opportunity was given to them to produce the books of accounts and the assessment has been passed by the second respondent in a hasty manner, without following the provisions of the TNGST Act. 4. The best judgment assessment order dated 16.12.2003, which was sent by registered post, was returned undelivered on 20.01.2004, as there was no one to receive the order. It is the grievance of the petitioner that when the order was sent to their business premises by registered post and returned un-delivered due to strike, the second respondent ought to have sent the order to the residential address of the partner rather than affixing at the business premises. The petitioner has further contended that service by affixture at the business premises without sending the order to the residential address of the partner is not a proper service. The petitioner came to know about the best judgment assessment only when they had received Form 4 (Section 25 Demand prior to Attachment of Land) from the office of the second respondent and thereafter, obtained a certified copy of the order dated 16.12.2003. Since the second respondent has not followed the cardinal principles of natural justice, the petitioner filed a petition under Section 16(D) of the TNGST Act before the Special Committee, first respondent enumerating all the facts leading to the passing of best judgment assessment for the year 2001-02 and prayed for setting aside the same and sought a de nova fresh assessment. By order dated, 05.09.2007, the first respondent rejected the said petition and the rejection order is challenged in this present Writ Petition. 5. The short facts in W.P.No.33852 of 2007 are as follows: The second respondent has passed a best judgment assessment under CST Act on 16.12.2003 by determining the total and taxable turnover of Rs.7,11,03.530/- and Rs.7,11,03.530/- respectively. The petitioner filed a petition under Section 16(D) of the TNGST Act before the Special Committee for a direction to make a fresh assessment for the above said period. The first respondent, by order dated 05.09.2007, rejected the said petition, which is challenged in the present Writ Petition. Rest of the averments made in this Writ petition are common to the earlier Writ Petition. 6. Mr.S.Rajasekar, learned counsel for the petitioner, referring to Section 16-D of the Tamil Nadu General Sales Tax Act, 1959 submitted that the Special Committee can call for and examine the records of the assessing authority in respect of any proceeding or order under sub-sections (2) or (3) of Section 12 or sub-sections (1) or (2) of Section 16, if such proceeding or order is passed in violation of the provisions of the Act or rules made thereunder or without following the principles of natural justice and set aside the said proceeding or order and direct the assessing authority to make a fresh assessment and pass orders in accordance with law. 7. Learned counsel for the petitioner further submitted that when the assessment orders were challenged in W.P.Nos.22627 and 22628 of 2004, this Court, by order dated 27.09.2004, granted liberty to the petitioner to file appeals before the appellate authority from one week from the date of passing of the order. Since there is a provision under the TNGST Act that the petitioner can file a petition under Section 16(D) before the Special Committee to redress their grievances the petitioner filed a petition under Section 16(D) rather than filing an appeal before the Appellate Authority. Further, the petitioner has to deposit 25% of the disputed tax as pre-condition for entertaining the appeal and therefore, considering the financial constraint, the petitioner opted to file a petition. He further submitted that when no proceedings were pending before the Court of law, proviso to Section 16-D is not applicable and therefore, the reasons assigned by the first respondent is not consonance with the provisions of the Act. 8. During the course of hearing, learned counsel for the petitioner brought to the notice of this Court, the proceedings of the Special Committee dated 31.08.2007 passed in respect of Tvl.Liason Incorporated, Chennai and submitted that the orders under Section 16-D should only be passed by three members of the committee, viz., (1) Secretary to Government, Commercial Taxes and Registration Department, (2) Commissioner of Commercial Taxes and (3) The Special Secretary to Government (Finance). The impugned order of rejection is passed only by the Commissioner of Commercial Taxes, Chennai and therefore, it is liable to be set aside for want of jurisdiction. 9. Mr.R.Mahadevan, learned Additional Government Pleader, submitted that the assessment orders passed in respect of both TNGST and CST Acts for year 2001-02 were challenged before this Court in W.P.Nos.22627 and 22628 of 2004 and by order dated 27.09.2004, the petitioner was given liberty to file only statutory appeals before the appellate authority. Therefore, it is not open to them to file applications under Section 16-D of the TNGST Act before the Special Committee. Once the appellate authority is directed to dispose of the appeals to be filed by the petitioners, the Special Committee has no jurisdiction to ignore the order and decide the correctness of the assessment orders for the assessment year 2001-02. He further submitted that if the Special Committee was appraised of the orders made in W.P.Nos.22627 and 22628 of 2004, the petitions filed under Section 16-D of the TNGST Act would not have been entertained. He further submitted that the rejection order passed by the Commissioner of Commercial Taxes, without reference to the other members committee is only a technical mistake, but that would not make the petitioner eligible to avail the remedy under Section 16-D of the Act. Heard the counsel for the parties and perused the materials available or record. 11. The main grievance of the petitioner is that during the relevant period, the mill was under lockout due to strike for more than two years and since nobody was allowed to enter the factory premises, the petitioner could not produce the accounts for scrutiny and the second respondent has passed the best judgment assessment and determined the total and taxable turnover under the TNGST and CST Acts without providing sufficient opportunity to the petitioner and thus there was a violation of the principles of natural justice. 12. When the assessment orders were challenged in W.P.Nos.22627 and 22628 of 2004, this Court, by order dated 27.09.2004, has passed the following orders: "By consent of both parties, the following order is passed. 2. ................. 3. It is stated by the learned counsel appearing for the petitioner that an assessment order has been passed without an opportunity to the petitioner, which was also not served on him. On representation made by the petitioner, the same was not served on 22.05.2003. It is further brought to the notice of this Court that the factory was closed for a long period. 4. Taking into consideration of the facts and circumstances of the case, liberty is given to the petitioner to file an appeal before the appellate authority within one week from today. On receipt of the appeal, the appellate authority can entertain the appeal in accordance with law and dispose of the same on merits." 13. It is evident that the orders were passed by consent of both the parties. Perusal of the petitions filed under Section 16-D of the Tamil Nadu General Sales Tax Act, before the Special Committee, reveal that the directions of this Court made in the above Writ Petitions granting liberty to the petitioner to prefer a statutory appeals have not been placed before the Special Committee. Proviso to Section 16-D is a restriction placed on the exercise of jurisdiction to the Special Committee that if any proceeding or order against which, the appeal or Writ Petition is pending. The restriction is based on the principle that more than one forum, cannot simultaneously adjudicate the dispute involved in a petition filed under Section 16-D of the Act. 14. It is explicit that the grievance of the petitioner regarding the violation of principle of natural justice has been considered by this Court while disposing of the above Writ Petitions. Perusal of the proceedings dated 31.08.2007 produced before this Court shows that the committee members have to examine the records of the assessing authority in respect of any proceeding or order is in violation of provisions of the Act or the Rules framed thereunder or without following the principles of natural justice and pass appropriate orders. In the case on hand, the first respondent applying the proviso of Section 16-D of the Act has disposed of the petitions as not entertained. When the statute contemplates the committee of three members to examine the petition under Section 16-D of the Act, the Commissioner alone cannot independently decide the petitions filed under Section 16-D of the Act. Therefore, exercise of the jurisdiction by the Commissioner alone is not in accordance with the statutory provision. Therefore, without going into the merits of the case, the impugned orders are set aside. The matters are remitted back to the Committee to decide the merits of the case after giving opportunity to the petitioner. The parties are at liberty to raise the issue of maintainability of the petitions and make their submissions before the committee. 15. In the result, the Writ Petitions are allowed with the above directions. No costs. Consequently, connected Miscellaneous Petitions are also closed. 23.01.2008 skm To 1. The Commissioner of Commercial Taxes, Chepauk, Chennai-5. 2. The Commercial Tax Officer, Udumalpet (North), Udumalpet. S. MANIKUMAR, J. skm W.P.Nos.33851 and 33852 of 2007 23.01.2008