Palaniappa Sago Factory vs Deputy Commercial Tax Officer and Another

Prabha Sridevan, J.—The appeal filed by the petitioner against the assessment order was filed beyond the time prescribed under the Tamil Nadu General Sales Tax Act, 1959 and beyond the power of the appellate authority to condone the delay and therefore the appeal was dismissed as not maintainable since it was filed beyond time. Against that the present writ petition has been filed.

The learned Counsel for the petitioner submitted that the assessment notice was not given and straight-away the assessment order was passed and therefore it is a ground that will go to the root of the matter and in those circumstances this Court should exercise its jurisdiction under Article 226 of the Constitution of India. The learned Counsel further submitted that though there is a Division Bench judgment in W.P. No. 10908 of 2002 [Reported as A. Radhakrishnan Proprietor of Sri Mahalakshmi Enterprises Vs. The Registrar, Tamilnadu Taxation Special Tribunal, The Appellate Assistant Commissioner (CT) and The Deputy Commercial Tax Officer, ] by which the Division Bench dismissed the writ petition on the ground that the appellate authority had rightly dismissed the appeal on the ground of delay, there have been two other Division Bench orders, one in W.A. No. 692 of 2007 [Kavita Chemicals v. Commercial Tax Officer (W.A. No. 692 of 2007 decided on April 27, 2007-Madras High Court)] and another in M. Krishnaswamy v. Registrar reported in [2004-05] 10 TNCTJ 168 wherein this Court had interfered with the original order of assessment itself which had been challenged.

All the orders of the Division Bench have been produced by the learned Counsel for the petitioner. Even in the case where the writ petition was dismissed the Division Bench has observed that "we are aware that in appropriate case, the High Court, while exercising jurisdiction under Article 226 of the Constitution of India, can interfere with the order even though an alternate remedy was not availed". However, in that case since the assessment order was not specifically challenged the Division Bench was not inclined to exercise its discretion. On the other hand, in the other two cases referred to above the Division Bench was inclined to interfere on the same ground as mentioned above.

In this case the ground on which the petitioner attacks the assessment order is that the basic principles of natural justice were violated and a reasonable opportunity was not given to the petitioner since the notice itself was not served on the petitioner. In these circumstances the impugned order is set aside and the assessing authority, namely, the first respondent, who after giving an opportunity shall proceed and finalise the assessment in accordance with law. The above writ petition is disposed of accordingly. No costs. Consequently the connected miscellaneous petitions are closed.