Shri Balaji Enterprises vs Commissioner of Commercial Tax and Others

A.M. Sapre, J.—The decision rendered in this writ shall govern the disposal of the other connected writ being W.P. No. 1327 of 2001, as in both these writs, common issue is involved and urged. The facts are few.

This petition is filed under Article 227 of the Constitution of India. By this petition, it seeks to assail the order dated March 27, 2001 (annexure P-l), passed by the Additional Commissioner, Commercial Tax, Indore, in its revisional jurisdiction under the provisions of the Madhya Pradesh Commercial Tax Act, 1994.

A perusal of impugned order and the submission pressed in service by the petitioner shows that the only question which was being debated before the Revisionary Tribunal which passed the impugned order was that adequate opportunity was not granted to the petitioner to cross-examine certain transporters by the assessing officer to whom the case was remanded for inquiry. In the opinion of the assessing officer as also that of the revisionary authority adequate opportunity was granted and if despite notices issued, some appeared and others did not then in such eventuality, it cannot be said to be a case where one can say that adequate opportunity was not granted to the petitioner before completion of assessment proceedings. It is this finding which is impugned by the petitioner in this petition.

Heard Shri P.M. Choudhary, learned counsel for the petitioner and Smt. M. Chafekar, learned Deputy Government Advocate, for the respondents.

Relying upon the law laid down in the cases reported in State of Kerala Vs. K.T. Shaduli Yusuff etc., ( C. Vasantlal and Co. Vs. Commissioner of Income Tax, Bombay City, . Vasantlal and Co. v. Commissioner of Income Tax, Bombay City) [1972] 30 STC 211 (P&H) ( K.P. Abdul Majeed Vs. CEGAT, ) ( Keveyam and Company Vs. G.S. Baghel, Additional Assistant Commissioner of Sales Tax and Others, , learned counsel for the petitioner made attempts to get rid of the impugned order, contending, inter alia, that the petitioner had to be afforded an opportunity to cross-examine the concerned transporters before making the assessment and secondly if, they did not appear, no adverse inference could be drawn against the petitioner.

In reply, learned counsel for the Revenue supported the impugned orders of assessment as also that of the revisionary court. It was pointed out that the impugned orders were made consequent upon the raid conducted in the business premises of the dealer (petitioner) wherein several documents were found involving tax evasion.

Having heard the learned counsel for the parties and having perused the record of the case, I find no merit in the writ.

In my opinion, the impugned orders do not call for any interference. The question, whether opportunity to cross-examine the transporters was granted and if so whether it was adequate or not was expressly gone into and then decided by the two authorities. It did not involve any legal issue as such as was being projected by the learned counsel for the petitioner in his submissions with the aid of the decisions referred supra. Whether and to what extent the opportunity should be extended, is for the assessing authority and revisionary authority to decide. The writ court in its extraordinary jurisdiction conferred under Article 227 of the Constitution of India, is not meant to decide such issues.

So far as the issues relating to facts are concerned, they cannot be disturbed as the same were gone into by the assessing officer as also by revisionary authority. The writ court cannot reopen the entire factual controversy de novo. I have gone through both the orders and in my opinion, they proceed on proper appreciation of facts. The cases cited by the learned counsel stands on the facts involved therein. In my view they cannot be of any help in upsetting the impugned order which is essentially based on the facts involved in it.

To conclude, I find no case to interfere. Accordingly, I dismiss the writ and uphold the orders impugned.

No costs.