Sterlite Industries (I) Limited vs The Deputy Commercial Tax Officer III

D. Hariparanthaman, J.—The Petitioner filed monthly returns for the Assessment Year, the Tamil Nadu General Sales Tax Act, 1959 (in

short the ""Act""), 1999-2000 and based on their returns, Assessment Order u/s 12 was passed on 30.04.2002.

However, based on inspection, pre-revision notice, dated 31.03.2006, was issued proposing to revise the assessment u/s 16 of the Act, insofar

as it relates to the freight charges for the period 01.04.1999 to 31.03.2000.

The Petitioner submitted reply dated 20.04.2006 and pointed out that for the earlier assessment years when revision of assessment was made

relating to the freight element, appeals were filed and the first Appellate Authority namely, Appellate Assistant Commissioner (C.T.), Tirunelveli,

allowed the appeal. It was also pointed out that the Department filed an appeal u/s 36 of the Act before the Sales Tax Appellate Tribunal (A.B.),

Madurai and the orders were yet to be pronounced on the same. Therefore, the Petitioners requested to wait for the outcome of the order of the

Tribunal. But the Respondent passed the revised assessment order dated 30.06.2006, levying tax on the freight charges and penalty was also

imposed. The Petitioner has filed the present writ petition to quash the aforesaid order dated 30.06.2006 of the Respondent.

The Respondent filed a counter-affidavit refuting the allegations made in the affidavit filed in support of the writ petition.

Heard Mr. N. Inbarajan, learned Counsel appearing for the Petitioner and Mr. S.C. Herold Singh, learned Government Advocate appearing for

Respondent.

The learned Counsel appearing for the Petitioner submits that though appeal is provided against these orders to the Appellate Assistant

Commissioner and thereafter, to the Sales Tax Appellate Tribunal, the Petitioner has chosen to file the writ petition, since for the previous years,

when the revision of assessment was sought to be made by including the freight charges, the first Appellate Authority as well as the Tribunal held

that freight charges could not be taken into account for levying tax. According to him, the Judicial discipline requires to follow the order of the

statutory appellate authority and the Respondent had shown undue haste in passing the impugned order, without waiting for the outcome of the

appeal filed by the Department before the Tribunal, though it was brought to his notice that arguments were heard and the matter was posted for

passing the order.

The learned Counsel for the Petitioner has brought to my notice Section 2(p) r/w Rule 6(c) of the Tamil Nadu General Sales Tax Act, 1959.

According to him, if the freight was separately charged, the same could not be taken into account for levying tax.

On the other hand, the learned Government Advocate seeks to sustain the order and submits that the Petitioner has alternative remedy under the

Act.

I have considered the submissions made on either side.

In the normal course, I could have directed the Petitioner to exhaust the remedy under the Tamil Nadu General Sales Tax Act, 1959. But, in

this case, the Petitioner has specifically pointed out in reply dated 20.04.2006, to the pre-revision notice dated 31.03.2006, that the first Appellate

Authority has already decided the same issue on similar facts in their favour and that the Department had filed an appeal to the Sales Tax Appellate

Tribunal and therefore, the Respondent should await for the outcome of the order of the Tribunal. But the Respondent has chosen to pass the

order, stating that since the matter is subjudice, he has not considered the point raised by the Petitioner. Now, the Sales Tax Appellate Tribunal

has confirmed the order of the first Appellate Authority.

In these circumstances, I am not inclined to direct the Petitioner to avail the alternative remedy under the Act. In the impugned order, the

Respondent has stated as follows, while considering the point raised by the Petitioner as to decision of the first Appellate Authority and the

pendency of the appeal by the Department on the same point before the Tribunal.

In Page No. 66 of the typed-set it is extracted hereunder:

In respect of other objection that the decision of the Appellate Assistant Commissioner, Tirunelveli in which assessment made on similar transaction

were set aside to be followed as judicial discipline, the department has not accepted the order of the Appellate Assistant Commissioner (CT) and

filed a state Appeal before the Sales tax Appellate Tribunal, (AB) Madurai. Since the matter is subjudice, there is no force on the argument of the

company to follow the Appellate Assistant Commissioner order. Hence this is also over-ruled.

In view of the aforesaid passage found in the impugned order, I am inclined to set aside the impugned order, dated 30.06.2006 and to direct

the Respondent to pass an order considering the order of the Tribunal in similar circumstances, dated 10.05.2006 in M.T.A. Nos. 446 of 2004

batch within a period of 12 weeks from the date of receipt of a copy of this order. Before passing final order, the Respondent is also directed to

give an opportunity to the Petitioner to put forth their case.

With the above observation, the writ petition is disposed of. Consequently, connected miscellaneous petition is also closed. No costs.