Roshan Commercial Trades (P) Ltd. vs Deputy Commercial Tax Officer

K. Raviraja Pandian, J.—The prayer in the writ petitions is for the issuance of a writ of certiorari to call for the records on the file of the respondent pursuant to his proceedings on TNGST.0862164/2002-03 and TNGST.0862164/2003-04 respectively dated December 4, 2006 received on December 14, 2006 and quash the same.

The writ petitions are filed challenging the correctness of the orders of the Deputy Commercial Tax Officer, Adyar I Assessment Circle in his proceedings dated December 4, 2006 levying statutory interest u/s 24(3) of the Tamil Nadu General Sales Tax Act, 1959 in a sum of Rs. 2,44,876 and Rs. 1,24,929 respectively on the premise that the additional tax required to be paid by the assessee at 1.5 per cent from April 2002 onwards and from April 2003 to February 2004 has been paid belatedly.

The penal interest calculated for the assessment year 2002-03 are as follows:

Month Due date Date of No. of days Addl. tax Penal payment delayed paid Rs. Int. due Rs. April 2002 20.05.02 07.01.03 231 5,00,000 77,000 April 2002 20.05.02 20.01.03 243 1,86,965 30,288 May 20.06.02 20.01.03 213 2,67,212 37,944 June 20.07.02 20.01.03 183 4,50,788 54,997 July 20.08.02 20.01.03 61 0,68,565 2,788 20.01.03 152 1,21,127 12,274 August 20.09.02 20.01.03 121 0,77,196 6,227 September 20.10.02 20.01.03 91 2,29,917 13,948 October 20.11.02 20.01.03 60 1,59,000 6,360 November 20.12.02 20.01.03 30 1,52,524 3,050 Total 2,44,876

The penal interest calculated for the assessment year 2003-04 are as follows:

Month Due date Date of No. of days Addl. tax Penal payment delayed paid Rs. Int. due Rs. April''03 20.05.03 19.03.04 302 0,81,376 16,384 May''03 20.06.03 19.03.04 271 0,91,968 16,618 June ''03 20.07.03 19.03.04 241 1,40,535 22,579 July ''03 20.08.03 19.03.04 210 1,16,350 16,289 August ''03 20.09.03 19.03.04 179 1,36,253 16,260 Sep.''03 20.10.03 19.03.04 149 1,50,270 14,927 Oct. ''03 20.11.03 19.03.04 118 1,16,341 9,152 Nov. ''03 20.12.03 19.03.04 88 1,25,026 7,335 Dec. ''03 20.01.04 19.03.04 57 0,82,512 3,135 Jan. ''04 20.02.04 19.03.04 28 1,29,905 2,252 Total 1,24,929

Prior to imposition of penalty, the petitioner was required to file objections if any to the imposition. The petitioner filed their objection by contending that the petitioner paid the entire additional tax without delay under proper intimation from the office and there was no short payment; that they could not estimate the turnover in advance and payment of additional sales tax depends on several circumstances namely Government policies ; competition from similar traders and the rate of tax to be paid as fixed by the concerned State Government; that the assumption that they have to pay higher rate of tax from the first bill itself is contrary to the law and thus requested to drop the proposal.

After considering the objections, the assessing officer passed orders stating that the payment of additional sales tax is to be made as and when the taxable turnover exceeds Rs. 10 crores. The dealers'' taxable turnover was determined at Rs. 33,02,95,257 and Rs. 28,59,81,891 respectively and they should have paid the additional sales tax as and when the taxable turnover reached Rs. 10 crores. It is an automatic statutory payment to be made along with filing of the returns and thus rejected the objections and confirmed the levy of penal interest for the belated payment of additional tax. That orders are canvassed before this Court.

Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959 reads as follows:

24(3) On any amount remaining unpaid after the date specified for its payment as referred to in sub-section (1) or in the order permitting payment in instalments, the dealer or person shall pay, in addition to the amount due, interest at two per cent per month of such amount for the entire period of default:

Provided that if the amount remaining unpaid is less than one hundred rupees and the period of default is not more than a month, no interest shall be paid:

Provided further that where a dealer or person has preferred an appeal or revision against any order of assessment or revision of assessment under this Act, the interest payable under this sub-section, in respect of the amount in dispute in the appeal or revision, shall be postponed till the disposal of the appeal or revision, as the case may be, and shall be calculated on the amount that becomes due in accordance with the final order passed on the appeal or revision as if such amount had been specified in the order of assessment or revision of assessment, as the case may be.

(3A) Where a dealer submits the prescribed return within ten days after the expiry of the prescribed period, he shall also pay, in addition to the amount of tax due as per his return, interest at two per cent of the tax payable for every month or part thereof.

Having regard to the statutory obligation on the part of the petitioner provided under the statute, it is the duty of the petitioner to pay the additional sales tax as and when it has become due, i.e., 20th of every succeeding month which is fixed for filing of the returns as per the rules. Even before this Court what was stressed by the learned Counsel for the petitioner is that the additional tax has been paid within the due date. That submission I am not able to concur because the details regarding payment has been given in a tabular statement for each and every month and also the number of days delay has also been calculated and stated separately. Even if the petitioner is having a case to substantiate its stand that the assessee has paid the amounts within the time as required under the statute, it is well open to the petitioner to place all the materials before the revisional authority and have the matter reconciled with all factual details and materials supporting the factual details for payment.

Admittedly, the orders impugned are revisionable order under the provisions of the Act. The revisional authority is more appropriate authority to get the dispute resolved by co-relating or reconciling the payment and find out whether there is delay as stated in the impugned orders or there is no delay as contended by the petitioner.

Usual reference can be had of the decision of the Supreme Court made in Union of India v. Tata Engineering & Locomotive Co. Ltd. reported in AIR 1998 SC 287, wherein in paragraphs 4 and 5 the Supreme Court has held as follows:

In our view, this writ petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow the judgment of the High Court or this Court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the regional sales offices, the court cannot stop him from making such enquiries.

Mr. Sorabjee, appearing on behalf of the respondents, has complained that the assessments are going on endlessly and without due regard to an earlier judgment of the Patna High Court in respect of an earlier assessment year on the very same issues. Whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. The High Court in exercise of its jurisdiction cannot give guidance to Assistant Collector about the manner and mode in which the assessment should be made.

Hence the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.