Madhya Pradesh High Court
M/S Michigan Rubber (India) Limited vs The State Of Madhya Pradesh Judgement ... on 3 February, 2014
M/s. Michigan Rubber Vs. State of M.P. & Ors.
Writ Petition No. 15126 / 2013,
Writ Petition No. 15123 / 2013,
Writ Petition No. 15125 / 2013,
Writ Petition No. 15127 / 2013,
and
Writ Petition No. 2622 / 2013,
3.2.2014.
Shri Shekar Sharma, learned counsel for the petitioner. Shri Rahul Jain, learned Dy. Advocate General for the State.
As common question of law and facts are involved in all these cases they are being decided by this common order.
Challenging the interlocutory proceedings having being held by the Assessing Authority in accordance to provisions of the M.P. Commercial Tax Act, 2002 petitioner has filed this writ petition.
It seems that in the year 2006, the department of Custom and Central Excise carried out a search in petitioner's premises. Petitioner is a company registered under the Companies Act, 1956 and carried out manufacturing of Tyres and Tubes and various other activities. It seems that after search and seizure was done the matter was reported by the Central Excise Department and the Commissioner, Commercial Tax M.P. in the matter and action taken and certain irregularities detected.
Be that as it may be, grievance of petitioner is that after receiving information from the Central Excise Department a show-cause notice was issued to the petitioner in the matter of assessment under the M.P. Commercial Tax Act, 1984. It was indicated that certain proposal was made for making M/s. Michigan Rubber Vs. State of M.P. & Ors.
assessment or re-assessment and certain notices were issued for reopening assessment ordered in the previous year.
Be that as it may be, after the show-cause notice issued, the petitioner submitted an application and sought for various documents and details and when nothing was done all these writ petitions were filed challenging the show-cause notice issued by the Commercial Tax Department and proposed action to be taken for reopening assessment for various years. It was also said that a preliminary objection raised with regard to the matter is not being considered. As assessment years are different and action proposed to be taken pertains to different year, different writ petitions are filed, but all show-cause notices are issued was by the Commercial Tax Department and action proposed to be taken in each case pertains to recovery of Commercial Tax from the petitioner under the M.P. Commercial Tax Act, 1994. While the matters were pending before this Court, now it is reported that during the pendency of the writ petitions the entire process of assessment or reassessment has been undertaken and final orders of assessment, as indicated by the Assessing Officer under the Commercial Tax Act have been passed.
Shri Rahul Jain, learned Dy. Advocate General now raises an objection with regard to maintainability of the writ petitions and argues that now as the final assessment orders have been passed petitioner should file an appeal before the competent appellate board under Section 61 of the M.P. Commercial Tax Act, 2002 and indulgence into the matter by M/s. Michigan Rubber Vs. State of M.P. & Ors.
this Court at this stage is not called for.
Shri Shekhar Sharma, learned counsel for the petitioner refutes the aforesaid and argues that as the action is initiated on totally improper and illegal consideration, the assessment has been done without giving proper opportunity of hearing to the petitioner, without supply of relevant documents and without giving an adequate chance to rebut the allegation, the entire assessment ordered is unsustainable.
Placing reliance on a judgment rendered by the Supreme Court in various cases to say that when the action is illegal and in violation of the principle of natural justice a writ petition is maintainable, learned counsel argued that as an arbitrary and illegal decision has been taken the matter be interfered with in these proceedings.
Shri Rahul Jain, learned Dy. Advocate General submits that petitioner has to challenge the assessment order in accordance to requirement of law and therefore, indulgence be not made in these proceedings.
Having heard learned counsel for the parties and on considering the rival contentions we are of the considered view that matter pertains to recovery of commercial tax. The assessment officer has conducted the assessment proceedings and now as the assessment order has been passed the petitioner should take recourse of remedy available under the statute and file an appeal before the statutory independent appellate authority, as is indicated under Section 61 of M.P. Commercial Tax Act. The question as to whether the assessment has been M/s. Michigan Rubber Vs. State of M.P. & Ors.
done properly, whether proper opportunity of hearing has been granted to the petitioner, whether relevant documents are supplied or not are all questions which can be dealt with by the competent Appellate Board. On such consideration, indulgence of this Court exercising extraordinary jurisdiction in this petition under article 226 of the Constitution is not called for.
That apart, if the petitioner has any grievance with regard to pre-deposit of the amount, the petitioner may approach the competent authority for waiver of pre-deposit amount and if same is not done, the question of waiver of pre-deposit can be challenged in accordance to law. But on such ground when a statutory appeal is available for challenging the order of assessment, we see no reason to interfere into the matter. That apart, in a matter pertaining to assessment of tax, when the assessment order is based on scrutiny of account books, ledge, vouchers and other materials, the assessment being based on certain factual aspects of the matter, such questions can be more appropriately dealt with by the statutory Appellate Board than by a writ court under Article 226 of the Constitution.
Accordingly, granting liberty to the petitioner to challenge the order of assessment in accordance to provisions of M.P. Commercial Tax Act before the assessment Board all these petitions are disposed of.
(RAJENDRA MENON) (A.K. SHARMA)
JUDGE JUDGE
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