Outdoor Advertising Services vs Deputy Commercial Tax Officer and Another

S. Manikumar J.

By the consent of parties, the main writ petition itself is taken up for hearing. The petitioner has sought for a mandamus directing the first respondent to return the cheques bearing No. 263349 dated June 9, 2005 for Rs. 62,167 and No. 263350 dated June 9, 2005 for Rs. 75,000, issued by the petitioner for collection, pursuant to the notice issued by the first respondent in O.R. No. Nil/2005-06 dated June 9, 2005.

It is the case of the petitioner that on June 9, 2005, there was an inspection by the enforcement officials of the first respondent and a statement was recorded stating that the petitioner''s turnover had crossed Rs. 3,00,000 per annum. The enforcement wing officials further alleged that the petitioner has transacted advertisement business to the tune of Rs. 10,88,623 for which the tax, surcharge and additional surcharge had been worked out to Rs. 1,37,167 and for the said purpose, collected the abovesaid cheques. It is the further contention of the petitioner that the first respondent has no jurisdiction to demand issuance of cheques without a proper assessment. In these circumstances, the petitioner has come out with the writ petition for the relief stated supra.

On this day, when the matter came up for hearing, it was brought to the notice of this court, that in similar circumstances, this court by its order dated April 9, 2009 in W.P. No. 4034 of 2009, has directed the respondent therein to return the cheques and the learned counsel for the petitioner submitted that the abovesaid judgment is squarely applicable to the facts of this case.

Per contra, Mr. J. Ganesan, learned Government Advocate, submitted that the cheques, which were presented, were dishonoured by the bank on instructions from the petitioner for stop payment, and therefore there is no need to return the same. He prayed for dismissal of the writ petition.

Heard the learned counsel for the parties and perused the material on record.

In the similar circumstances, this court in the above unreported decision, has considered the issue of return of cheques and passed the following orders:

The learned Government Advocate submitted on instructions that no assessment orders were passed, that the cheques were issued by the petitioner voluntarily and that the cheques were presented for payment, but got dishonoured. It is clear from the instruction taken from the learned Government Advocate that there is no dispute about the fact that the cheques did not represent any money due under any assessment order or demand made. Therefore, the question as to whether the cheques were issued voluntarily or not need not be gone into for the purpose of this writ petition. However, since the petitioner in now reclaiming the cheques on the basis of a legally sustainable objection, the respondents are duty-bound to return the cheques.

In view of the above, this writ petition is ordered, directing the respondents to return the cheques detailed above within two weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.

As the petitioner is similarly placed, I have no hesitation in following the order made in the above writ petition. In these circumstances, the first respondent is directed to return the cheques bearing Nos. 263349 and 263350 dated June 9, 2005 to the petitioner within a period of two weeks from the date of receipt of a copy of this order. With the above directions/the writ petition is ordered. No costs. Consequently the connected miscellaneous petition is closed.