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Judgment
V. Kanagaraj, J.—The petitioner has filed the above two writ petitions praying to issue a writ of certiorari to call for the records of the first
respondent in his proceedings dated September 12, 1992, in D. 810 of 1991 GIR 18 N of 1987-88, D. 811 of 1991 and GIR 18 N of 1987-88
respectively, and to quash the same.
In the affidavits filed in support of both the above writ petitions which are nothing but the same for all purposes, the petitioner would submit that
the petitioner is an assessee under the provisions of the Tamil Nadu Agricultural Income Tax Act, 1955 (hereinafter referred to as the ""Act""), that
for the assessment year 1987-88 pertaining to the accounting year April 1, 1986 to March 31, 1987, the petitioner was subjected to final
assessment and the order which was passed u/s 17(3) of the Act by the first respondent on the income received from rubber amounting to Rs.
1,16,50,391. While so, the first respondent by notice dated September 12, 1992, purporting to be u/s 35 of the Act alleged that there was escape
of Income Tax which was liable to be brought to tax further alleging that the second respondent had issued guidelines for the average yield per acre
under rubber plantation in Kanniyakuniari District to be 600 kg, per acre and the same has been fixed in consultation with the concerned
departments including the Rubber Board ; that applying the said guidelines rate of yield, the first respondent has computed a shortfall of the income
of Rs. 38,63,424 and has proposed to levy agricultural income of Rs. 25,11,226 and called upon the petitioner to file the correct returns within
September 30, 1992, which is patently contrary to the provisions contained in the Act and the Rules.
The further averments of the affidavits are that yet another notice on the same date, that is, September 12, 1992, had been served on the
petitioner also purporting to be u/s 35 of the Act for the same assessment year 1987-88 referring to the amalgamation of Greenham Estate Private
Limited with that of the petitioner''s estate and has assessed that the expenditure incurred on Greenham Estate which ceased to exist having
become part of the petitioner''s estate, was erroneously allowed and that, therefore, the same had to be withdrawn ; that he has proposed to
exclude the expenditure of the said estate incurred in earning that income relating to the non-existent estate thus proposing to determine the
escaped Income Tax at Rs. 37,40,151 and has proposed to levy further tax of Rs. 24,31,098 arrived at short levy of tax amounting to Rs.
8,38,598. In both the above notices, he has not attached the return form as claimed and in the former notice for this notice, time was fixed for filing
objections by September 30, 1992, thus it is very clear that for one and the same assessment year 1987-88 under the Act, the first respondent is
invoking his power of revision u/s 35 of the Act by means of two distinct and separate notices spelling out the so-called escape of income
differently thus acting in utter disregard of the authority conferred on him as a quasi-judicial authority ; that the two notices impugned in the writ
petitions are patently wrong and illegal and are liable to be quashed ; that the two notices purporting to be u/s 35 of the Act served by the first
respondent on the petitioner in respect of the assessment year 1987-88 of the Act are ex facie and patently wrong and illegal and the same are
liable to be quashed.
In the counter affidavit filed on behalf of the respondents, the respondents besides generally denying the allegations of the writ petitions would
also specifically submit that the assessment of the petitioner was originally finalised u/s 17(3) of the Act whereby the petitioner was determined at a
net income of Rs. 30,25,063 and tax levied to a tune of Rs. 19,66,290.90 by the first respondent in his proceedings GIR-18 N/87-88, dated
March 19, 1988 ; that subsequent to the said assessment, it was brought to the notice of the authorities that the total production of 6,01,225 kg. of
rubber from 1,331.03 acres worked out to 451.7 kg. per acre and that the production rate was very much below the guidelines issued by the
second respondent, viz., 600 kgs. per acre, and this difference had resulted in a short levy of tax of Rs. 25,11,226 and hence the first respondent
had issued a notice u/s 35 of the Act so as to enable the petitioner to give his objections and it is only challenging the said notice, the petitioner filed
the first of the above writ petitions.
The respondents would further submit in the counter that during the accounting year 1986-87, the petitioner-company filed the returns for the
assessment year 1987-88 and the same was finalised u/s 17(3) of the Act ; that during the enquiry, the value of 6,01,229 kgs. of rubber was
worked out at Rs. 1,16,50,391 and the same was finalised ; that as per the guidelines of the second respondent, the average yield per acre is 600
kgs. per year and it has been fixed in consideration of various aspects and in consultation with the concerned departments including the Rubber
Board ; that in view of the short levy of tax, notice u/s 35 of the Act was issued to the assessee so as to enable them to give their objections fixing
the time till September 30, 1992 ; that the time was considered to be short, the petitioner was at liberty to pray for some more time, but now the
petitioner has approached this court in spite of having alternate remedy.
The counter affidavit would further state that the petitioner has shown the production value at Rs. 98,58,164 from 1,331 acres of rubber which
works out to Rs. 7,400 per acre. But the expenditure for the production of rubber has been shown exorbitantly at Rs. 7,000 without assigning any
convincing reason ; that it was under such circumstance, a notice had been issued ; that it is more than the guidelines fixed at 600 kg. per acre ; that
the writ petitions would not lie since there is an efficacious alternative remedy provided under the statute as concluded by the apex court in its
decision reported in Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 ; that by way of reply to a notice issued u/s 35 of the
Act, the petitioner could have filed his objections before the authorities ; that it is also relevant to point but that the Greenham Estate Divisions have
been amalgamated by the petitioner with effect from April 1, 1986, that in the notice issued, the petitioner was asked to give his explanation as to
how the company has claimed two different expenditures under two different headings, ""Head Office (common)"" and ""Head Office (agricultural)
when the head office of the petitioner is located at Madras. But instead of giving explanation to the notices, the petitioner has chosen to file the
above writ petitions. On such and other grounds offered in the counter affidavit, the respondents would ultimately pray to dismiss the writ petitions
with costs.
Assessing the facts and circumstances of the case from the pleadings of parties and having"" regard to the materials placed on record and upon
hearing learned counsel for both, what comes to be known is that merely based on the two notices issued by the first respondent u/s 35 of the Act
which are impugned herein, offering certain reasons that those notices have been issued in an irregular manner, the petitioner has come forward to
file the above two writ petitions at one and the same time, each petition connecting to one notice, in spite of an appeal provided under the
provisions of the Act for such matters. So far as the respondents are concerned, they do not come forward to argue that the petitioner cannot
testify the validity of such notice issued whether it is on escaped assessment or for any other reasons. But the simple question that is posed is which
is the immediate forum for remedy ? According to the respondents, the remedy lies before the appellate authority who is fixed by the statute and
not by means of the writ jurisdiction.
Whatever be the grievance of the petitioner, the respondents'' case is that it should be projected before the appropriate statutory authority first
and after exhausting their remedies, the petitioner-company should have ultimately resorted to the writ jurisdiction before this court thus with scant
regard for the legal provisions which are open for remedy the petitioner with a view to stall further proceedings has come before this court by
means of the writ petition.
From the manner in which the petitioner has rushed to this court in respect of all what he has stated in the writ petition that a remedy is provided,
for the petitioner to submit before the regular appellate authority under appeal provisions of the Tamil Nadu Agricultural Income Tax Act, 1955.
But knowingly, the petitioner without resorting to such statutory remedy has come forward to seek the extraordinary constitutional remedy thus
bypassing the legal remedy available under the statute. In spite of the avenues open for remedy for matters of such nature, the petitioner has
resorted to file the writ petition probably to get interim orders of stay of such proceedings initiated on the part of the agricultural Income Tax
authorities thus crippling the case at the notice stage itself and to shelve it in the cold storage and his request for such an interim stay having been
answered in the affirmative by this court at the admission stage, the petitioner for the last eight years, has been successfully evading further
proceeding by the Department.
The respondents are also lethargic in the sense that they did not initiate any measure to vacate the interim stay granted, showing to this court
that regular statutory remedy is available ; that after four years of the institution of the writ petition and the stay granted in the WMPs, the
respondents have moved for vacating the stay in the year 1996 and the learned single judge who dealt with that rightly opining that it was not the
proper time to vacate the stay and it was fit to hear the writ petition itself early had disposed the said petition. But in spite of such opinion offered,
again the system has co-operated with the petitioner for four more years to carry out the said direction since the main writ petitions have not at all
been brought to the list for consideration.
In the above circumstances, the only course open for the petitioner not only now but also even at the time of filing of the above writ petitions, is
to prefer a regular appeal under the relevant provisions of the Act before the appellate authority having jurisdiction to entertain such appeals.
Nowhere the petitioner has stated that his remedy does not lie before the regular statutory appellate authority and only lies before this writ court
under judicial review, nor any material has been brought forth to that effect on the part of the petitioner. None of the circumstances also favour this
court to go into the merits of the case for passing any order regarding the facts alleged.
On the contrary, since a statutory appeal is open for the petitioner to exhaust his remedy and since it is fit and proper for the appellate authority
and then the revisional authority who are provided for by the Tamil Nadu Agricultural Income Tax Act, 1955, to deal with the subject-matter
freely, it is also not proper on the part of this court to offer opinions or remarks since it is susceptible to affect the free and fair manner in which the
said appellate and revisional authorities are expected to arrive at their own conclusions on the facts and circumstances that are revealed in the case.
For all the above discussions held, the only course open for this court in both the above writ petitions so far as the contents and prayers of the
same are concerned, is to dismiss the writ petitions.
In the result, the above writ petitions fail and they are dismissed. The petitioner, if he is aggrieved in any manner regarding the impugned notices
issued by the respondents, is at liberty to prefer a statutory appeal remedy and thereafter the revisional forum under the relevant provisions of the
Act.
No costs.
Consequently, WMP Nos. 21426, 21427 of 1992. 26374 and 26375 of 1996 are also dismissed.