Madras High Court
Coromandel Petroleum Private Limited vs Commercial Tax Officer on 17 December, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.12.2012
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
Writ Petition Nos.9462 to 9264 of 2004
and
W.P.M.P.No.11041 of 2004 in W.P.No.9462 of 2004
Coromandel Petroleum Private Limited,
2-B, Chesney Nilgiri,
No.44, Commander-in-Chief Road,
Chennai-600 008. ... Petitioner in all the writ petitions
-vs-
1. Commercial Tax Officer
No.3, Tank Square Street,
Saidapet,
Chennai-600 015.
2. The State of Tamil Nadu,
represented by the Secretary to Government,
Department of Commercial Taxes
and Religious Endowments,
Fort St. George,-600 009.
3.The State of Kerala,
represented by the Secretary,
Department of Revenue,
Trivandrum,
Kerala.
4.The State of Karnataka,
represented by the Secretary,
Department of Revenue,
Bangalore 560 001. ... Respondents in all the writ petitions
W.P.No.9462 of 2004 is filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, call for the records on the file of the first respondent in TNGST/6221178/2003-04 dated 31.3.2004, quash the proceedings of the first respondent in TNGST/6221178/2003-04 dated 31.3.2004, insofar as it relates to assessment of a sum of Rs.12,28,15,694/- as local sales inside the State of Tamil Nadu.
W.P.No.9463 of 2004 is filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the State of Karnataka, the fourth respondent to transfer to the credit of the first respondent the taxes paid to the Deputy Commissioner of Commercial Taxes (Assessment-15), City Division-I, Bangalore-9 by the petitioners in the State of Karnataka under the Central Sales Tax Act, 1956 on the inter-state sales effected between April 2003 and October 2003 to customers inside Tamil Nadu.
W.P.No.9464 of 2004 is filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the State of Kerala, the third respondent to transfer to the credit of the first respondent the taxes paid to the Assistant Commissioner (Assessment), Special Circle-II, Commercial Taxes, Ernakulam, by the petitioners in the State of Kerala under the Central Sales Tax Act, 1956 on the inter-state sales effected between April 2003 and October 2003 to customers inside Tamil Nadu.
For Petitioner
in all W.Ps. : Mr.N.Sriprakash,
For Respondents
in all W.Ps. : Mr.A.R.Jayaprathap
Government Advocate (Taxes)
for R1 and R2
No appearance for R3 and R4.
-----
COMMON ORDER
W.P.No.9462 of 2004 is filed praying to issue a Writ of Certiorari, call for the records of the first respondent in TNGST/6221178/2003-04 dated 31.3.2004, quash the proceedings of the first respondent in TNGST/6221178/2003-04 dated 31.3.2004, insofar as it relates to assessment of a sum of Rs.12,28,15,694/- as local sales inside the State of Tamil Nadu.
2. W.P.No.9463 of 2004 is filed praying to issue a Writ of Mandamus, directing the State of Karnataka, the fourth respondent to transfer to the credit of the first respondent the taxes paid to the Deputy Commissioner of Commercial Taxes (Assessment-15), City Division-I, Bangalore-9 by the petitioners in the State of Karnataka under the Central Sales Tax Act, 1956 on the inter-state sales effected between April 2003 and October 2003 to customers inside Tamil Nadu.
3. W.P.No.9464 of 2004 is filed praying to issue a Writ of Mandamus, directing the State of Kerala, the third respondent to transfer to the credit of the first respondent the taxes paid to the Assistant Commissioner (Assessment), Special Circle-II, Commercial Taxes, Ernakulam, by the petitioners in the State of Kerala under the Central Sales Tax Act, 1956 on the inter-state sales effected between April 2003 and October 2003 to customers inside Tamil Nadu.
4. Heard Mr.Sriprakash, learned counsel appearing for the petitioner and Mr.A.R.Jayaprathap, learned Government Advocate (Taxes) appearing for the respondents 1 and 2. None appears on behalf of the respondents 3 and 4. The petitioner and the respondents are one and the same in all the writ petitions. By consent all the three writ petitions are taken up together for disposal.
5. W.P.No.9462 of 2004:- The petitioner in all the three writ petitions is a dealer in Superior Kerosene Oil. The registered office is in Chennai and an assessee in the books of the first respondent Commercial Tax Officer, Saidapet Assessment Circle, Chennai-15. They have been paying tax under Rule 18 of the TNGST Rules, 1959. Petitioner imports the Superior Kerosene Oil (in short SKO) through the Port at Kerala and Karnataka and is engaged in sale to buyers in Tamil Nadu, besides, other places. The sale of SKO is against C form issued on account of interstate sale and on such sale the petitioner pays CST at 4% in the State of Kerala and Karnataka.
6. Petitioner filed monthly returns and the impugned provisional assessment order deals with the period April 2003 to October, 2003. It appears that the business premises of the petitioner was inspected by the Central Enforcement Wing of the respondent department on 16.4.2003, 26.9.2003, 30.9.2003 and 14.11.2003. Based on the inspection so done, a notice was issued on 13.1.2004. Under the notice the interstate sales transaction was disputed and was alleged that the sale was intrastate and the notice was issued for provisional assessment order calling upon the petitioner to state as to why the sale should not be treated as intrastate sale. Besides, there is also an allegation of suppression relatable to local sales. In response to the said notice, petitioner submitted a detailed reply/objection on 3.2.2004 denying the allegations in the notice by stating that there is no intrastate sale. The said plea was made supported by documents serial Nos.1 to 5 running to about 172 pages. It was pointed out by the counsel for the petitioner that those documents relates to clearance of the very same goods by import, payment of central excise duty and the quotations given by the buyers in Tamil Nadu for purchase of SKO by way of interstate sale. This was filed to prove their case that there is no basis for the allegation of intrastate sale. This reply/objection was considered and a provisional assessment order came to be passed under the TNGST Act determining the taxable turnover for the period April, 2003 to October, 2003 treating the interstate sale as intrastate sale and demanding tax thereon and that is under challenge.
7. The authority relies upon the defects pointed out by the inspection authorities and refers to slip Nos.1 to 15 and other documents. The authority thereafter proceeds to recover purchase orders from the individual mills who are supposed to have made intrastate purchase of SKO. On an analysis of the slips and the purchase orders, the authority comes to the following conclusion:-
"Analysis of the above evidences:
1. From the above, it is seen that the consumers in and around Coimbatore have placed orders addressed to the dealers Chennai office and in most of the cases, with advance payments by D.D. and in turn they were forwarded to the assessees Coimbatore branch to monitor the delivery of SKO to the ultimate buyer. Both this order and the D.D. have finally been handed over to the Coimbatore branch. In many purchase orders, the place wherefrom the goods should be supplied, is not mentioned. In some cases there is provision for CST 4% but this will not be the deciding factor for interstate sale. In some cases both the place and CST 4% are absent.
Although in some of the cases, it has been noted that goods from Cochin it cannot be determinative test to call it as in the course of interstate purchase. To put it in simple words, the buyer at Coimbatore is concerned only with the delivery of SKO as their premises and not concerned whether it comes from Cochin or from Coimbatore.
2. Further, all the consignments first reached Coimbatore Depot and then only started its journey to the buyers destination. In some cases as can be seen from the D7 records recovered during inspection, the freight has been paid by Coimbatore Depot. Hence it is clear that Coimbatore Deport took full custody of the goods before it is delivered to the buyers.
3. According to Sec.3 of the CST Act 1956 a sale can be a interstate sale, in the movement of goods is the result of covenant in the contract of sale or is an incident of that contract. In this case, there is no privity of contract between the upcountry seller and the ultimate buyer in the State of Tamil Nadu. They buyers are concerned and confined for door delivery of SKO in their premises in the state of Tamil Nadu and do not know from where it has come.
The order placed in Tamil Nadu has not occasioned the movement of goods from Cochin to Tamil Nadu, as it is not an order placed with the Cochin office for the supply from Cochin. Thus, there are two independent transactions, one between the Cochin Depot and the buyer. Hence, it cannot be said that this is a sale in consonance with the above provision.
4. In fact, the branch transfer has been camouflaged as interstate sale and the records created in such a manner to believe that it is direct interstate sale, in order to avoid payment of 25% local tax. These records are only make belief fabricated and in connivance of seller, buyer to avoid local taxes. Hence this is a clear case of suppression of local tax camouflaged as interstate purchases by the said buyers.
.....................
6. Even according to the situs of sale theory the above transactions have to be treated local sale.
In the Supreme Court judgment reported in 29 STC P.246 in the case of Salar Jung Sugar Mills vs. State of Mysore, unascertained goods have been categorized as under:-
1. Goods to be manufactured, processed or grown by the dealers.
2. General goods such as when the seller does not have sufficient Goods of the description to be appropriated to the contract; and
3. Unidentified goods part of a specific whole such as 100 tons out of 1000 tons held in stock.
7. SKO at Cochin Terminals is stored in big storage of more volume, and
8. 12 kl and 20 kl is very nominal which cannot be identified at the time of contract of sale. Hence it falls under category (iii) supra. When the unascertained goods move from one state to another and they are ascertained for a particular contract of sale only after they are received at the destination, the sale will not come under sec. 3 but will only amount to a local sale at the destination (vide Kelvinator of India vs. Deputy Commercial Tax Officer 23 STC 86 Madras affirmed in (1975) 36 STC P. 389 SC).
9. As in the instant case, the SKO being an unascertained goods is appropriated in Tamil Nadu for the orders placed with the Coimbatore Depot, it is only a local sale according to Sec.4(2)(b) of the CST Act 1956 read with the explanation 3(a)(ii) to sec.2(n) of the TNGST Act 1959. This will be the case in respect of other Depots and Chennai office.
Again in this office notice even No. & dated 27.2.04, the dealers were informed that the suppression noticed by the Chennai Enforcement Wing Officials has been noted as Rs.2,85,302-00 instead of Rs.11,41,209-00 by oversight. Hence it may be read as Rs.11,41,209-00 instead of Rs.2,85,302-00 at page 14 of the notice and thus the total and taxable turnover was proposed to be determined upto 31.10.03 is fixed at Rs.14,99,67,343-00 liable at 25%.
To the notices issued on the above lines, the dealers in their letter dt.3.2.2004 & 26.2.2004 have filed their objections in detail and finally requested to drop the proposals. I have gone through the objections with the following results:-
Suppressions Rs.11,41,209-00 The dealers have filed the details of cost, customs duty & expenditure under various heads for the import of 30,836.939 Kl of SKO before the inspecting officials and based on that the average sale value per Kl was worked out and the suppression of Rs.11,41,209-00 arrived at. The dealers plea that the expenditure under various heads of Rs.1,08,73,068-00 pertain to 43,280.329 Kl of SKO is nothing but an after thought.
Even according to the dealers version that the total expenditure under various head noted in column 2(c) to 2(K) of the notice worksout to Rs.1,08,73,068-00 is to be adopted for 43280.329 kl the average expenditure worksout to Rs.77,46,987-00 adopting this, the average sale value worksout to as below:-
4380.329 kl = Rs.1,08,73,068-00 30836.939 kl = Rs.77,46,987-00 The total cost worksout to for 30836.939 kl Rs.40,56,85,743.00 instead of Rs.40,88,11,824-00. It clearly proves there is sales suppression. Hence the proposal to assess the turnover of Rs.11,41,209-00 is confirmed.
Further the objections and evidences now raised and produced were not made available before the inspecting officials or the processing officials to substantiate their claim. The commissions and omissions pointed out at the time of inspection still exist. A close verification of the records recovered for verification revealed that normally in almost all the cases, orders have been placed by the dealers at in and around Coimbatore and Erode direct to the head office at Chennai only and not with Cochin, Mangalore or Bangalore branches who effects interstate sales. The terms and conditions of delivery and payments are immediate and through the dealers representative. Thus it is clear indication that the entire responsibility is on the assessee (i.e.) Coimbatore or Erode branch as the case may be, who should get the goods and deliver it at the door steps of the buyers in Coimbatore or Erode. The buyer in Tamil Nadu is concerned only with the delivery of materials at their point and not concerned whether the goods moves either from Cochin, Bangalore and Mangalore or in Tamil Nadu.
Further the customers have placed orders only with Chennai office along with the payment for the bill amount and that there is no mention about the place from where it was rooted through (i.e.) either from Chennai, Coimbatore or Erode branch.
Thus to avoid local tax, the dealers have conveniently, camouflaged the local sales as Interstate sales. Thus all the consignment of the alleged Interstate sales have been terminated at the branch office at Coimbatore and after that only, goods delivered to the respective buyers in Tamil Nadu.
In view of the above I find no reason to deviate from the earlier proposal and accordingly the dealers are provisionally assessed for the 2003-04 (From 1.4.03 to 31.10.03) as below on a total and taxable turnover of Rs.15,58,27,343-00 and Rs.14,99,67,343-00 respectively."
8. Though the purchase orders were placed in Chennai, the goods were actually delivered only from the State of Kerala and Karnataka. It is the specific plea of the petitioner that the buyers booked the goods at the delivery point, (i.e.) Kerala or Karnataka and transported the consignment by themselves. There was no transfer of the stock to Coimbatore or Erode as the case may be which appears to be the wrong premises on which the authority proceeded to state that it is intrastate sales. In support of this plea, the Central Excise document showing the proof of payment of central excise counter veiling duty and the central excise tax payment is relied upon coupled with quotations and purchase orders, which clearly mentions the nature of interstate sales. This is supported by payment of 4% CST in the State of Kerala or Karnataka.
9. The authority says that in some cases, as can be seen from the D7 records recovered during the inspection, the freight has been paid by Coimbatore Depot and the Coimbatore Depot took full custody of the goods before it is delivered to the buyers. This is denied by the petitioner in the reply and the authority has not chosen to specify any particular document which forms the basis of the finding. In Para 3 of the analysis of the evidence, the authority comes to hold that there is no privity of contract between the upcountry seller and the ultimate buyer in the State of Tamil Nadu. It is, therefore, apparent that the authority has failed to consider the quotations and purchase orders which form the basis for the interstate sale. It is to be noticed that the authority clearly accepts that there are 2 independent transactions, one between Cochin Depot and the buyer and the other between the Coimbatore Depot and the buyer that itself is a misconception. If the goods are already transferred to the buyer from Cochin or Karnataka, as the case may be there is no transfer or sale from the Depot Coimbatore or Erode.
10. In para 4 as well as in the last paragraph of the analysis which has been extracted above, the authority comes to the conclusion that the dealer has conveniently camouflaged the local sales as interstate sales. As to which document is relied upon to hold that the dealer had indulged in camouflaging in sales as interstate sales is not recorded. This assumes importance in the light of the specific plea taken by the petitioner that the records which are considered by the authority, namely, slips and the purchase orders clearly established a case of transfer of SKO from Kerala and Karnataka to the buyers in Tamil Nadu. The payment made to Chennai office is of no consequence.
11. The plea of the assessing officer that the purchase orders have not been placed at Cochin and Karnataka office cannot be a ground to deny interstate sale. In support of the plea petitioner cited the following reliance in his reply/objection:-
(a) 23 STC 152 (Mad.) (Deputy Commissioner (CT), Madurai Division, Madurai v. Arasan Match Industries, Sivakasi),
(b) 38 STC 475 (SC) (English Electric Company of India Limited v. Deputy Commercial Tax officer),
(c) 52 STC 164 (Mad.) (Chesebrough Pond's Inc. V.State of Tamil Nadu)
(d) 102 STC 536 (Mad.) (Macneil and Magor Limited v. State of Tamil Nadu),
(e) 48 STC 232 (South India Viscose Limited v. State of Tamil Nadu) The above legal plea has also not been considered by the assessing officer.
12. The finding given in para 8 of the analysis of the evidence is related to movement of unidentified goods for a particular contract of sale and so it will fall under the category of unascertained goods. Therefore, it will not be a sale of being an interstate sale but intrastate sale.
13. The Petitioner's plea is that at no point of time there was transfer of goods to an unidentified buyer in the State of Tamil Nadu. This is borne out from records and therefore, the finding is contrary to the records already furnished. While considering the objections and the evidence produced by the petitioner, the same is rejected cursorily by saying that what is now produced by way of objection has not been produced before the inspecting officials and therefore, the commission and omission pointed out continues. In sum and substance, the main plea of the department appears to be that orders have been placed by the buyers at Coimbatore and Erode to the Head Office at Chennai and not with Cochin, Mangalore or Bangalore to establish a case as interstate sale.
14. The above plea is specifically denied by the petitioner based on records running to 172 pages in support of the objection. Without adverting to those records, the authority has cursorily come to the conclusion that the dealer/petitioner has conveniently camouflaged the local sales as interstate sales. The finding that the interstate sales have been terminated in the branch office at Coimbatore and thereafter goods were delivered to buyers in Tamil Nadu appears to be incorrect. This is specifically and emphatically denied by the petitioner based on record and that has not been considered at all.
15. It is pointed out by Thiru Sriprakash that the counter takes a totally different version from that of the analysis by stating that the interception was made at Chennai whereas in the notice, the interception was made at Coimbatore. This shows non application of mind.
16. However, this court is not inclined to go into the veracity of the counter-affidavit which is totally irrelevant at this point of time. Fact remains that the entire order appears to be one-sided placing reliance totally on the slips and purchase orders without analyzing the objection and the documents furnished by the petitioner in support of their case.
17. This court had in earlier occasion considered an almost identical issue for the assessment year 2003-04 in Inbios Petroleum (P) Limited vs. - Commercial Tax Officer and another in W.P.Nos.7747 and 7748 of 2004 dated 15.11.2012. In that case also almost an identical objection was raised and considered by this Court and the following order was passed:-
7. A reading of the above clearly shows that the order suffers from total non-application of mind as well as non-consideration of the documents and records produced by the petitioner. The authority states that she had examined the objections and copies of records and therefore the production of records is not in dispute. If the records were taken for consideration, it is not clear as to how the authority can state that no evidence was filed to show the movement of goods from other States to the local purchasers based on the covenant. This statement appears to be a fallacy, as the purchase orders had already been produced showing the origin of goods from Cochin to the purchaser at the State of Tamil Nadu. The next reason is that there was no evidence to show that the purchase orders were transmitted to the Cochin branch. For this, the petitioner has submitted the central excise records to show the delivery of goods after import and the payment of central sales tax at 4% supported by the certificate issued by the Assistant Commissioner (Assessment), Special Circle-II, Commercial Taxes Department, Ernakulam. Those records have not been taken into consideration by the authority.
8. The next finding of the authority is even more unreasonable, that is to say that the records have been camouflaged to show that they were inter-State sales from Cochin. With great reservation, the Court would observe that the authority has not taken pains to state as to which document has been camouflaged and in what manner to show the inter-State sales from Cochin. A finding of this nature, serious enough to allege, should be based on analysis of documents and not merely on conjectures and surmises. There is no analysis of the admitted documents to show that they have been camouflaged in one or other manner. Therefore, the said statement of camouflage appears to be a figment of imagination by the authority. The next finding is that the goods had been received by the Coimbatore branch, taken to stock and then delivered to customers in Tamil Nadu and this was done only to avoid the local tax. The plea of the petitioner is that neither there is any evidence nor has the officer relied upon any material document. It is, therefore, clear that all these allegations are mere conjectures and surmises on the part of the authority, without analysing the documents produced by the petitioner and what makes the matter worse is that, there are no reasons recorded as to which of the documents are invalid under law and which of the documents have been camouflaged to show the inter-State sales and how those documents are inadmissible in law. The original authority, namely, the Commercial Tax Officer cannot give a finding against an assessee on mere ipse dixit, as has been done in the present case. All the documents referred to by the petitioner have been brushed aside by stating as not applicable. It is also surprising to note that the officer has merely brushed aside the central sales tax paid in other State by stating that it does not alter the transaction, namely, local sales in Tamil Nadu. Unless and until it is shown by material document as to which document established the case of local sales, the authority cannot unilaterally come to the conclusion that the sale in this case was local sales exigible to tax under the provisions of the State Act. The question of suppression, which is also the reason for levy of penalty, appears to be unsupported by any material. On the whole, the entire order, which runs to about seven pages, contains only the extract of the notice and the reply upto six pages and the last paragraph of the seventh page only deals with the record of findings by the authority, which apparently do not contain any reasons. It is well established principle in law that the administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. In S.N.Mukherjee v. Union of India, AIR 1990 SC 1984, the Hon'ble Supreme Court held in paragraphs 35, 38 and 39 as follows:-
"35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.
38. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.
39. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision."
9. In the light of the above, this Court has no hesitation to hold that the first respondent-Commercial Tax Officer has passed a non-speaking order, bereft of reasons, without application of mind to the records produced. The entire findings are in the realm of conjectures and surmises and, therefore, the petitioner was justified in approaching this Court to interfere with the same.
10. Though a counter affidavit is filed, it does not further the case of the first respondent, as it is only the reiteration of the order and in any event, as has been held by the Apex Court in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others AIR 1978 SC 851, the counter affidavit cannot improve the case of the department when the order does not speak for itself. Para 8 of the decision in AIR 1978 SC 851 reads as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16) (at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older."
11. For all the above reasons, the impugned order is set aside and the matter is remitted to the first respondent-authority for re-consideration of the entire issue and the first respondent is directed to pass a reasoned order on merits after affording opportunity to the petitioner. W.P.No.7747 of 2004 is allowed by way of remand. Consequently, W.P.M.P.No.9191 of 2004 is closed.
12. In view of the order passed in W.P.No.7747 of 2004, no further direction is required to be issued in W.P.No.7748 of 2004. Accordingly, W.P.No.7748 of 2004 is closed. No costs. The same reasons will apply to the present case as well.
18. In the present case, in the notice as well as provisional assessment order, there is an issue relating to suppression of intrastate sales. It is the plea of the petitioner that the issue is subject matter of proposed revision. This court is not deciding on that issue leaving it open to the petitioner to pursue the same if he so desires and if not the authority is to proceed in accordance with law.
19. Insofar as the issue relates to interstate sale is concerned, the impugned order is set aside and the matter is remitted to the first respondent for reconsideration of the entire issue so as to pass reasoned order for the entire assessment year as the assessment can be concluded in respect of whole year as returns have already been filed. It is needless to state that the petitioner should be given an opportunity to explain his case before final order is passed.
20. W.P.No.9462 of 2004: This Writ Petition is allowed as above. No costs. Consequently, connected miscellaneous petition is closed.
21. W.P.No.9463 and 9464 of 2004:- In view of the order passed in W.P.No.9462 of 2004 as above, the mandamus sought for in W.P.Nos.9463 and 9464 of 2004 does not arise at this point of time and no orders required to be passed. Accordingly, both W.P.Nos.9463 and 9464 of 2004 are closed. No costs.
17.12.2012
Index: No
Internet: Yes
ts
To
1. Commercial Tax Officer
No.3, Tank Square Street,
Saidapet,
Chennai-600 015.
2. The Secretary to Government,
Department of Commercial Taxes
and Religious Endowments,
Fort St. George,-600 009.
3.The Secretary,
State of Kerala,
Department of Revenue,
Trivandrum,
Kerala.
4.The Secretary,
State of Karnataka,
Department of Revenue,
Bangalore 560 001.
R.SUDHAKAR,J.
ts
Common Order in
W.P.Nos.9462 to 9464 of 2004
17.12.2012