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Judgment
The Honourable Mr. Justice Vinod K. Sharma
The Petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, praying for issuance of a Writ in the
nature of Certiorari to quash the order dated 13.09.2006, passed by the Special Committee u/s 16-D of the Tamil Nadu General Sales Tax Act,
1959.
In support of the prayer, it is the pleaded case of the Petitioner, that the petitioner is a dealer of Beedi Leaves and Tobacco carrying on business
in the name of ''Shanthi Trading Company'' at Tenkasi. The place of business of the Petitioner was inspected by the officials of the Enforcement
Wing on 29.04.2003 in the absence of the Proprietor of the firm. At that time, only sales bill were kept as the Account Books were under lock
and key. It is for this reason, the person in-charge at the time of inspection could not produce the account books before the officials of the
Enforcement Wing. The Inspecting officers secured 11 slips of papers containing business transactions and for want of account books treated it to
be suppression and recorded the statement of person in-charge.
It is the case of the Petitioner that after recording of the statement on 28.10.2003, the Petitioner was given an opportunity of hearing in the
enquiry. At the time of enquiry, the Deputy Commercial Tax Officer, Tenkasi recorded that entire 11 slips stood accounted for and there is no
suppression of sales transaction.
Thereafter, contrary to this fact, the Deputy Commercial Tax Officer assessed the tax by treating these slips to be suppression of turn over.
The Petitioner has the statutory remedy of appeal u/s 31 of the Tamil Nadu General Sales Tax Act, 1959, against the orders passed by the
Deputy Commercial Tax Officer.
Section 31 of the Act reads as under:
Appeal to the Appellate Assistant Commissioner.--(1) Any person objecting to an order passed by the appropriate authority u/s 4-A, Sub-
section (3) of Section 10, Section 12, Section 12-A, Section 14, Section 15, Sub-sections(1) and (2) of Section 16, Section 18, Sub-sections(2)
of Section 22, Section 23 or Section 27 other than an order passed by an Assistant Commissioner(Assessment) may, within a period of thirty days
from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner
having jurisdiction.:
Provided that the Appellate Assistant Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the
first mentioned period of thirty days if he is satisfied that the Appellant had sufficient cause for not presenting the appeal within the first mentioned
period;
Provided further that in the case of an order under Sub-section (3) of Section 10, Section 12, Section 12-A, Section 14, Section 15 or
subsections (1) and (2) of Section 16, no appeal shall be entertained under this Sub-section unless it is accompanied by satisfactory proof of the
payment of the tax admitted by the Appellant to be due of such installments thereof as might have become payable, as the case may be, and
(twenty five) per cent of the difference of the tax assessed by the assessing authority and the tax admitted by the Appellant.
(2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding
one hundred rupees as may be prescribed.
(3) In disposing of an appeal, the Appellate Assistant Commissioner may, after giving the Appellant a reasonable opportunity of being heard, and
for the sufficient reasons to be recorded in writing--
(a) in the case of an order of assessment--
(i) confirm, reduce, enhance or annul the assessment or the penalty or both;
(ii) set aside the assessment and direct the assessingauthority to make a fresh assessment after such further inquiry as may be directed; or
(iii) pass such other orders as he may think fit; or
(b) in the case of any other order, confirm, cancel or vary such order;
Provided that at the hearing of any appeal, the appropriate authority shall have the right to be heard either in person or by a representative.
(4) Omitted by Act No. 31 of 1972 w.e.f. 1st December 1972.
(5) Notwithstanding that an appeal has been preferred under subsection (1), the tax shall be paid in accordance with the order of assessment
against which the appeal has been preferred;
Provided that the Appellate Assistant Commissioner may, in his discretion, give such directions as he thinks fit in regard to the payment of the tax
before the disposal of the appeal, if the Appellant furnishes sufficient security to his satisfaction, in such form and in such manner as may be
prescribed.
The Petitioner instead of availing the appeal remedy filed a representation with the appellate authority showing his inability to deposit 25% of the
tax.
The Petitioner thereafter invoked Section 16-D of the Tamil Nadu General Sales Tax Act, 1959, which reads as under:
16-D. Constitution of Special Committee.--(1) The Government shall appoint a Special Committee consisting of (1) Secretary to Government,
Commercial Taxes Department (2) Commissioner of Commercial Taxes; (3) Secretary to Government, Finance Department or his nominee.
(2)Notwithstanding anything contained in this Act, the Special Committee may, of its own motion or on application, call for and examine the
records of the assessing authority in respect of any proceeding or order under Sub-section(2) or (3) of Section 12 or subsection( 1) and (2) of
Section 16, if such proceeding or order is passed in violation of the provisions of the Act or rules made there under or without following the
principles of natural justice, set aside the said proceeding or order and direct the assessing authority to make a fresh assessment and pass fresh
proceeding or order in such manner as may be directed.
Provided that such proceeding or order against which any appeal or writ is pending shall not be entertained under this Sub-section.
(3) The order passed under Sub-section(2) shall be final.
The Special Committee u/s 16-D dismissed the application, by recording a finding that there was no violation of rules or principles of natural
justice or violative of statutory provision of the act or rules which could entitle the Committee to exercise suo-motu power or on an application of
the Petitioner to enter with the orders passed by the Deputy Commercial Tax Officer.
The Learned Counsel for the Petitioner has challenged the impugned order by contending that the order passed by the Special Committee u/s
16-D in exercise of quasi judicial power is not a speaking order, as it has not dealt with the grounds raised by the Petitioner in the application filed
by the Petitioner to challenge the order of the Deputy Commercial Tax Officer.
In support of this contention, the Learned Counsel for the Petitioner vehemently contended, that the reading of assessment order itself reveal
that the Deputy Commercial Tax Officer after giving opportunity of hearing to the Petitioner had recorded a finding that 11 slips recovered at the
time of inspection stood accounted for. Inspite of the positive finding while passing the order of assessment, a contrary finding to the one observed
above is recorded holding that there was suppression of turnover shown in the 11 slips, recovered at the time of inspection and the impugned
order, was passed.
The contention of the Learned Counsel for the Petitioner, is that the impugned order cannot be sustained, as it is outcome of non-application of
mind, as no reasons have been recorded to reject this contention.
On consideration, I find no ground to interfere with the order u/s 16-D of the Tamil Nadu General Sales Tax Act as the Special Committee
was right in dismissing the application on the ground that there was no violation of statutory provisions of the rules nor there was no violation of
principles of natural justice.
A reading of Section 16-D shows that this is a special provision vesting jurisdiction with the Special Committee, to exercise suo-motu power
or on an application of the party, in case, the order is patently bad being violative of principles of natural justice or is in violation of statutory
provisions of law.
Section 16-D is not a substitute for statutory appeal. The contention raised by the Petitioner at best can show the order passed by the Deputy
Commercial Tax Officer was bad in law, but it was not an order which was lacked jurisdiction or was in violation of statutory provisions of law or
in violation of principles of natural justice.
The contention of the Learned Counsel for the Petitioner that the exercise u/s 16-D can also be exercised when the order is illegal cannot be
accepted.
The Legislature did not enact Section 16-D to by-pass the statutory remedy of appeal. It was for the Petitioner to file an appeal and in case of
inability to deposit the tax he could have approached the appellate authority for deciding the appeal without insisting for furnishing of deposit of tax
at 25% therein by furnishing security as provided u/s 31 of the Tamil Nadu General Sales Tax Act.
As already held above, in view of the availability of statutory appeal, and there being no violation of statutory provisions or of natural justice,
the application filed by the Petitioner was rightly rejected by the Special Committee, which does not call for any interference by this Court in
exercise of extraordinary equitable jurisdiction under Article 226 of the Constitution of India.
Finding no merits, the Writ Petition is dismissed.
No costs.
However Petitioner shall be at liberty to challenge the assessment order in appeal, if so advised. Keeping in view the fact that the Petitioner
bona fide filed a petition u/s 16-D and thereafter, approached this Court by way of this Writ, in case appeal is filed in accordance with law, within
30 days of receipt of certified copy of this order. The appellate authority shall decide it on merit by treating it to be filed within limitation.