Mallika Traders vs The Deputy Commercial Tax Officer

Vinod K. Sharma, J.—The Petitioner has approached this Court, with a prayer for issuance of a Writ of Certiorari, for quashing the order

dated 27.02.2008, cancelling the Registration Certificate issued to the Petitioner under T.N.G.S.T. Act 1959, for non payment of Additional

Security Deposit.

The Petitioner is a Manufacturer of hand made matches, and fire works, therefore, claims to be exempted under the T.N.G.S.T. Act 1959.

Vide notice dated 06.12.2004, a demand of Rs. 5,61,666/- (Rupees Five Lakhs Sixty One Thousand Six Hundred and Sixty Six only) along

with Surcharge, totalling a sum of Rs. 5,89,749/- (Rupees Five Lakhs Eighty Nine Thousand Seven Hundred and Forty Nine only) was raised

against the Petitioner, and accordingly, the Petitioner was directed to furnish additional security of amount representing 50% of the tax demanded.

The Petitioner did not furnish the additional security amount, and vide order dated 24.12.2004, the Respondent cancelled the Registration

Certificate of the Petitioner.

The Petitioner, being aggrieved by the demand of additional security, and cancellation of Registration Certificate, approached this Court by filing

Writ Petition No. 308 of 2005, wherein interim order was passed, staying further proceedings, subject to the Petitioner depositing a sum of Rs.

1,50,000/- (Rupees One Lakh and Fifty Thousand only).

The Petitioner, being aggrieved by the order, filed Writ Appeal No. 78 of 2005, which was partly allowed, and the interim order of deposit was

modified, giving liberty to the Petitioner, to furnish security for Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand only), instead of depositing

the amount.

In compliance to the order passed by this Court, the Petitioner furnished the security, and was thereafter, assessed to Sales Tax on the goods.

The assessed tax was paid from time to time, and nothing is due or payable by the Petitioner under the Act.

When the Writ Petition No. 308 of 2005 came up for hearing, it was got dismissed as withdrawn

The impugned order, was passed by the Respondent, as the writ petition challenging the order of cancellation, was got dismissed as withdrawn.

The Learned Counsel for the Petitioner has challenged the impugned order, primarily on the ground, that after furnishing of security, as directed

in the Writ Appeal, and further action of the Respondent in assessing the Petitioner under the T.N.G.S.T. Act 1959, it was presumed, that the

impugned order of cancellation of Registration Certificate stood withdrawn, therefore, it cannot be to revive now, after the writ petition was

dismissed as withdrawn.

This contention of the Learned Counsel cannot be accepted. It is well settled law, that all interim orders passed in pending proceedings get

merged with the final order. Once the writ petition was got dismissed as withdrawn unconditionally, and not as infructuous, it cannot be said, that

the order impugned in the writ petition had ceased to exist.

No fault, can be found with the impugned order, as it is in nature of executing order in view of withdrawal of writ petition.

Faced with the situation, the Learned Counsel for the Petitioner contended, that the order of cancellation is required to be considered on merit,

as the earlier writ was withdrawn, under the misconception, that the impugned order had become inoperative, and that, the writ had been rendered

infructuous.

This again cannot be a ground to re-open the closed matter.

The remedy with the Petitioner was to move this Court for withdrawal of concession, by pointing out the misunderstanding, on account of the

subsequent facts, leading to the impression that nothing had survived in the writ petition, but the Petitioner cannot file the second writ petition, on

the same cause of action, after the earlier writ petition was got dismissed as withdrawn unconditionally.

Finding no merit, this writ petition is dismissed.

However, this order shall not bar the Petitioner, to take appropriate remedy in accordance with law, to get the previous writ petition revived, if

so permissible, and advised, in accordance with law.

No costs.