Andhra HC (Pre-Telangana)
M/S.Doshi Motors Pvt. Ltd vs The Commercial Tax Officer, Sultan ... on 27 August, 2014
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN AND THE HONBLR SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION Nos.28499 OF 2013 and batch
27-08-2014
M/s.Doshi Motors Pvt. Ltd..Petitioner
The Commercial Tax Officer, Sultan Bazar Circle, Abids Division, Hyderabad &
Ors. . Respondents
Counsel for the petitioner: Sri E.Manohar, Learned Senior
Counsel for Sri S.Krishna Murthy, Learned Counsel for the petitioner.
Counsel for respondents: Sri P.Balaji Varma, Learned Special
Standing Counsel for Commercial Taxes.
<GIST:
>HEAD NOTE:
?Citations:
1. (2011) 52 APSTJ 85
2. 2008(1) SCC 494
3. AIR 1978 SC 8
4. AIR 1965 SC 111
5. 2013(1) SCC 524
6. AIR 1981 Rajastan 3
7. (2011) 44 VST 353 (AP)
8. AIR 1987 SC 88
9. AIR 1961 SC 1457 = [1962] 2 S.C.R. 575
10. (2013) 3 SCC 182
11. (1956) 1 All ER 855
12. (2011) 3 SCC 363
13. (2007) 5 SCC 211
14. (1992) ILLJ 283 SC
15. (1997) 1 SCC 9
16. (1996) 1 SCC 435
17. (1997) 3 SCC 443
18. (2003) 9 SCC 401
19. (2010) 11 SCC 557
20. (1969) 1 SCC 110
21. (1977) 2 SCC 431
22. (1999) 1 SCC 271
23. (2003) 1 SCC 488
24. (2004) 7 SCC 166
25. (2010) 4 SCC 728
26. (1993) 4 SCC 317
27. (2009) 9 SCC 386
28. 1993 Supp (2) SCC 20
29. (1994) 6 SCC 620
30. (1995) 1 SCC 242
31. (1977 WLN 88
32. (1997) 1 SCC 134
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HONBLR SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION Nos.28499, 28542 AND 28582 OF 2013
COMMON ORDER:(per Honble Sri Justice Ramesh Ranganathan) W.P. No.28499, 28582 and 28542 of 2013 are filed to set aside the assessment orders passed by the first respondent dated 05.11.2012, for the assessment years 2011-12, 2010-11 and 2009- 10, along with the appeal rejection orders passed by the 4th respondent dated 14.08.2013, as without authorisation from the 3rd respondent; and contrary to the law laid down in Balaji Flour Mills, Chittoor v. Commercial Tax Officer II, Chittoor .
The petitioner, a private limited company, is engaged in the business of buying and selling motor vehicles. They are dealers registered both under the APVAT Act, 2005 and the CST Act, 1956. The 1st respondent, by proceedings dated 05.11.2012, passed assessment orders under the CST Act for the years 2009-10, 2010- 11 and 2011-12 rejecting the C declaration forms submitted by the petitioner on the ground that, on cross verification, the said C declaration forms were found to be bogus. The entire turnover of the petitioner was assessed to tax at 12.5%. The petitioner filed W.P. Nos.9168, 9175 and 9176 of 2013 questioning the assessment orders dated 05.11.2012 passed for the years 2009-10 to 2011-12. All the three writ petitions were dismissed as withdrawn, by order dated 01.04.2013, granting the petitioner liberty to pursue the statutory remedy of appeal. The petitioner preferred appeals to the 4th respondent against the assessment orders dated 05.11.2012. The 4th respondent, by order dated 14.08.2013, rejected the appeals preferred by the petitioner, at the admission stage, holding that the appeals were filed beyond the extended period of limitation of sixty days; and there was no power vested in him to condone the delay beyond the extended period of limitation. The petitioner contends that, subsequently on legal advice, they came to understand that the assessment orders dated 05.11.2012, passed by the 1st respondent, was without jurisdiction as he was not authorised by the 3rd respondent in terms of Rule 59(4)(ii)(b) of the APVAT Rules, 2005, and the judgment of this Court in Balaji Flour Mills, Chittoor1, to finalise the assessment.
This Court by its order in W.P. Nos.28499, 28582 and 28542 of 2013 dated 03.10.2013, while ordering notice before admission, directed the respondent not to take any coercive steps for collection of the disputed tax for a period of six weeks. Thereafter, by orders dated 19.11.2013 and 02.01.2014, the interim orders passed on 03.10.2013 were extended for a limited duration; and subsequently, by order dated 11.02.2014, the interim orders were extended until further orders. The respondents have filed petitions to vacate the interim orders.
In his counter-affidavit the 1st respondent submits that the petitioner had filed their returns, for the period 2009-10, 2010-11 and 2011-2012, under the CST Act; they filed C declaration forms, claiming concessional rate of tax, in terms of the provisions of the CST Act; in order to finalise the assessment, he had verified the C declaration forms and, on enquiry, it came to his notice that the said forms were fake and bogus; he had also cross verified with the Deputy Commissioner (CT), Durg, in Chattisgarh State who informed, by her letter dated 19.07.2012, that, on verification of the records, the said C declaration forms were found not to have been issued by their department and were fake; he had, therefore, finalised the assessment for all the three years on 05.11.2012, in accordance with law, disallowing concessional rate of tax; on receipt of the assessment orders the petitioner submitted a copy of the letter dated 19.07.2012, purported to have been issued by the Deputy Commissioner (CT), Durg Division Chattisgarh State, that the C declaration forms produced by the petitioner were correct; on further verification, the Deputy Commissioner (CT), Durg Division, Chattisgarh State, by her letter dated 27.02.2013, had informed that the letter dated 19.07.2012, submitted by the petitioner to the respondents herein, was not issued by her, and it was a forged and fabricated document; the petitioner had not only filed fake and bogus C forms, but had also produced forged and fabricated letters in the name of the Deputy Commissioner (CT), Durg Division, Chattisgarh State to support their false claim; the petitioner, having failed in all their attempts to defraud the revenue, had filed W.P. Nos.9168, 9175 and 9176 of 2013 challenging the assessment orders on the ground that their objections dated 22.10.2012 were not considered; the first respondent had filed his counter-affidavit therein stating that the round seal of their office, acknowledging receipt of the said objections on 22.10.2012, was fabricated; 22.10.2012 was a public holiday in view of Durgastami and, as such, their office could not have acknowledged receipt of the objections on that day; after receiving the counter-affidavit, the petitioners Counsel had sought permission of this Court to withdraw the Writ Petition to avail the statutory remedy of appeal; this Court, after recording that a counter-affidavit was filed and served on the petitioner, had permitted the petitioner to withdraw the Writ Petition granting them liberty to avail the statutory remedy of appeal; criminal complaints have been lodged, against the petitioner and their officers, for the offences of forgery and fabrication of various documents; Crime No.197 of 2013 was registered by the Central Crime Station, Hyderabad, and the directors of the petitioner were arrested; the petitioner has produced fake and bogus C forms to claim concessional rate of tax; they tried to sustain the claim of concessional rate of tax, thereafter, by producing a forged letter, in the name of the Deputy Commissioner (CT), Durg, Chattisgarh State, to the effect that the said C forms were correct; the petitioner had also fabricated the office seal of the 1st respondent, and had made a false statement on oath before this Court that they had filed their objections on 22.10.2012, a public holiday; the petitioner had played fraud both on the revenue and on this Court; the petitioner had withdrawn W.P. Nos.9168, 9175 and 9176 of 2013 with liberty to avail the statutory remedy of appeals; they had availed the appellate remedy which were dismissed on the ground of limitation; the present Writ Petitions have been filed challenging the very same assessment orders dated 05.11.2012, for the assessment years 2009-10, 2010-11 and 2011-12, on the ground that the assessment orders were passed without jurisdiction; no liberty was sought from this Court, in W.P. No.9168, 9175 and 9176 of 2013, to file Writ Petitions afresh; this Court had permitted them to withdraw the earlier Writ Petitions only to avail the alternate remedy of a statutory appeal; having preferred the statutory remedy of appeals, it is not open to the petitioner to now file Writ Petitions questioning the assessment orders itself; successive Writ Petitions cannot be maintained against the same order taking different grounds; the Writ Petitions are liable to be dismissed on the ground that no person can approach different forums for the same relief; after having failed, in the statutory remedy of appeal, the petitioner is not entitled to maintain these Writ Petitions as they are hit by the doctrine of election; the Writ Petitions are also liable to be dismissed on the ground that the petitioner had not approached this Court with clean hands; they had, in the earlier instance, played fraud on this Court filing forged documents, and making false statements on oath; on their being exposed, and in order to escape the consequences of perjury and avoid criminal prosecution, they had withdrawn the Writ Petitions; having played fraud on the Court they cannot be permitted to maintain the present Writ Petitions; the allegation that the 1st respondent had passed orders, without obtaining authorisation from the 3rd respondent, is not tenable; there is no rule or provision in the CST Act, under which the subject assessment orders were passed, to obtain authorisation in terms of Rule 59 of the A.P. VAT Rules; in terms of Section 9(2) of the CST Act, read with Rules 2(c) and 14(A)(6) of the CST (AP) Rules, Section 2(4) and 3A of the A.P. VAT Act and Rule 59(2) of the A.P. VAT Rules, no authorisation is required/necessary for finalisation of assessments under the CST Act; the Commissioner of Commercial Taxes had also issued a circular dated 03.01.2013 instructing all assessing authorities in the State to complete assessment within the prescribed time limit; in terms of the said circular the 1st respondent, being the territorial assessing officer, is empowered to finalise the assessment under the CST Act; and the Writ Petitions are devoid of merits.
Sri E. Manohar, Learned Senior Counsel appearing on behalf of the petitioner, would submit that, after this Court had granted liberty to them to withdraw the Writ Petitions to prefer appeals, the petitioner had invoked the jurisdiction of the Appellate Deputy Commissioner who, by order dated 04.08.2013, had refused to entertain the appeals on the ground that they were filed beyond the period of limitation; it is only thereafter that the petitioner has filed the present writ petitions as the Commercial Tax Officer, who passed the orders of assessment dated 05.11.2012, lacks jurisdiction; it is only if the 1st respondent had been authorised by the Deputy Commissioner, under Rule 59(4) of the A.P. VAT Rules, was he entitled to pass the orders of assessment; Rule 59 of the A.P. VAT Rules was amended with effect from 21.01.2013; as the impugned assessment order dated 05.11.2012 is without jurisdiction, and this issue is squarely covered by the decision of this Court in Balaji Flour Mills, Chittoor1, the petitioners are entitled to file Writ Petitions afresh questioning the assessment orders dated 05.11.2012 as without jurisdiction; and the mere fact that they had withdrawn the earlier Writ Petitions would not disentitle them from filing Writ Petitions afresh. Learned Senior Counsel would rely on Sarva Shramik Sanghatana (KV), Mumbai v. State of Maharashtra and Balaji Flour Mills, Chittoor1.
On the other hand Sri P. Balaji Varma, Learned Special Standing Counsel for Commercial Taxes, would submit that the petitioner has not come to the Court with clean hands; the judgment of this Court, in Balaji Flour Mills, Chittoor1, relates to the jurisdiction of the assessing authority to pass assessment orders under the A.P. VAT Act; the said judgment has no application to an order of assessment passed under the CST Act; the petitioner did not take the plea of lack of jurisdiction in the earlier Writ Petitions; they withdrew the Writ Petitions with liberty to prefer the statutory remedy of appeal; in the present Writ Petitions the order of the appellate authority, in rejecting their appeal on the ground of limitation, is not seriously under challenge; as they had not obtained liberty to file Writ Petitions afresh, it is not open to the petitioner to file the present Writ Petitions questioning the very same assessment orders dated 05.11.2012; and the Writ Petitions, as filed, are an abuse of process of Court and are liable to be dismissed with exemplary costs. Learned Special Standing Counsel would rely on Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji ; T. Prem Sagar v. M/s. Standard Vacuum Oil Company, Madras ; Ratnagiri Gas and Power Private Limited v. RDS Projects Limited ; and Mohanlal v. State of Rajasthan .
The very same assessment orders, which are under challenge in the present Writ Petitions, were subjected to challenge earlier in W.P. No. 9168, 9175 and 9176 of 2013. Counter- affidavits were filed therein by the 1st respondent herein (the 4th respondent in W.P. No. 9168, 9175 and 9176 of 2013). In its order, in W.P. No.9175 of 2013 dated 01.04.2013, this Court noted that a counter-affidavit had been filed and had been served on the petitioner; however, when the matter was taken up for consideration, Learned Counsel for the petitioner sought permission to withdraw the Writ Petition with liberty to pursue the statutory remedy of appeal; and accordingly, granting leave and liberty, the Writ Petition was dismissed as withdrawn and the Registry was directed to return the original demand notice to the Counsel for the petitioner. The petitioner preferred an appeal, thereafter, to the 4th respondent herein i.e., the Appellate Deputy Commissioner who, by order dated 14.08.2013, rejected the appeal as barred by limitation. The Appellate Authority relied on a judgment of the Division bench of this Court in M/s. Agarwal Industries (P) Ltd v. The Appellate Deputy Commissioner (CT), Hyderabad , wherein it was held that the appellate authority lacked jurisdiction to treat as within limitation an application filed before it beyond the maximum time limit specified in the statute after excluding the time spent in prosecuting, in good faith and with due diligence, any prior proceedings on the analogy of Section 14(2) of the Limitation Act.
I. CAN WRIT PETITIONS BE FILED QUESTIONING THE VERY SAME ASSESSMENT ORDERS DATED 05.11.2012, WHICH WERE UNDER CHALLENGE IN THE EARLIER WRIT PETITIONS, WHEN THE EARLIER WRIT PETITIONS WERE WITHDRAWN WITH LIBERTY TO FILE STATUTORY APPEALS, AND NOT TO FILE WRIT PETITIONS AFRESH?
Sri E. Manohar, Learned Senior Counsel appearing on behalf of the petitioner, would fairly state that the Appellate Authority lacks power to entertain an appeal filed beyond the extended period of limitation; and the 4th respondent had not acted amiss in refusing to entertain the petitioners appeals as they were filed 144 days after receipt of the assessment orders. Even by 01.04.2013, when the petitioner sought liberty to withdraw W.P.Nos.9168, 9175 and 9176 of 2013, the period of limitation, for preferring an appeal to the Appellate Deputy Commissioner, had already expired. The question which arises for consideration is whether the petitioner is entitled to file a second writ petition questioning the very same assessment orders dated 05.11.2012 which were under challenge in the earlier writ petitions, albeit on the ground that the said orders, passed by the 1st respondent, were without jurisdiction.
Very often after a writ petition is heard for some time, and when the petitioner or his counsel find that the Court is not likely to pass an order admitting the petition, a request is made to permit the petitioner to withdraw the Writ Petition without seeking permission to institute a fresh Writ Petition. A Court, which is unwilling to admit the petition, would not, ordinarily, grant liberty to file a fresh petition while it may agree to permit withdrawal of the petition. The petitioner may, in a case involving enforcement of his fundamental rights, file a petition before the Supreme Court under Article 32 of the Constitution of India because, in such a case, there has been no decision on merits by the High Court. The principle, underlying rule 1 of Order XXIII C.P.C. should be extended, in the interests of administration of justice, to cases of withdrawal of a Writ Petition also, not on the ground of res judicata but on the ground of public policy. It would discourage a litigant from indulging in bench-hunting tactics. There is no justifiable reason to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While withdrawal of a Writ Petition, filed in a High Court, without permission to file a fresh Writ Petition, may not bar other remedies like a Suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. A fresh Writ Petition is not maintainable before the High Court in respect of the same subject-matter where the earlier Writ Petition has been withdrawn without permission to file a fresh petition. (Sarguja Transport Service v. S.T.A. Tribunal, Gwalior ; Daryao. v. The State of U.P. ).
It is no doubt true that the petitioner herein, while withdrawing W.P. Nos.9175, 9176 and 9168 of 2013, had sought liberty to avail the statutory remedy of appeals and this Court had, while dismissing the Writ Petitions as withdrawn, granted them liberty to do so. The challenge in W.P. Nos. 9175, 9176 and 9168 of 2013 was to the assessment orders passed by the 1st respondent herein on 05.11.2012. While the petitioner was entitled to file appeals against the said orders of assessment, in view of the liberty granted to them by this Court, and to question the appellate order in subsequent Writ Proceedings if they were aggrieved thereby, Sri E. Manohar, Learned Senior Counsel, has fairly stated that the appellate order does not suffer from any legal infirmity; and the challenge, in these Writ Petitions, is to the validity of the assessment orders passed by the 1st respondent herein on 05.11.2012. In the absence of liberty being granted by this Court to file fresh Writ Petitions, questioning the assessment order dated 05.11.2012, the petitioner is not entitled to again invoke the jurisdiction of this Court, under Article 226 of the Constitution of India, questioning the very same orders of assessment dated 05.11.2012 which were under challenge in the earlier Writ Petitions.
In Sarva Shramik Sanghatana (KV), Mumbai2, reliance upon which is placed by Sri E. Manohar, Learned Senior Counsel appearing for the petitioner, the appellant contended before the Supreme Court that it could very easily have pretended to discuss the matter with the workers' union, bide its time till 13.4.2007, and then claim the benefit of deemed grant of permission for closure; instead of doing so, they decided to bonafide explore the possibility of an overall settlement with the remaining employees; since that could not have been done within the remaining four days, they withdrew their application under Section 25-O(1) of the Industrial Disputes Act so that an attempt for settlement could be made; its conduct, in seeking withdrawal of its closure application, was bonafide; their effort for an amicable settlement failed; and, hence, they had filed a fresh application, under Section 25- O(1) of the Industrial Disputes Act, before the Commissioner of Labour, Mumbai. It is in this context that the Supreme Court held:-
.We have referred to the aforesaid decisions and the principles laid down therein, because often decisions are cited for a proposition without reading the entire decision and the reasoning contained therein. In our opinion, the decision of this Court in Sarguja Transport case (supra) cannot be treated as a Euclid's formula .No doubt, Order XXIII Rule 1(4) CPC states that where the plaintiff withdraws a suit without permission of the court, he is precluded from instituting any fresh suit in respect of the same subject matter. However, in our opinion, this provision will apply only to suits. An application under Section 25-O(1) is not a suit, and hence, the said provision will not apply to such an application (emphasis supplied).
The Supreme Court, in Sarva Shramik Sanghatana (KV), Mumbai2, held that as an application, under Section 25(0)(1) of the Industrial Disputes Act, is not a Suit, Order XXIII Rule 1(4) CPC is not attracted. Unlike an application under Section 25(0)(1) of the Industrial Disputes Act, Order XXIII Rule 1(4) CPC is applicable to Writ Proceedings under Article 226 of the Constitution of India. Reliance placed by Sri E. Manohar, Learned Senior Counsel, on Sarva Shramik Sanghatana (KV), Mumbai2 is, therefore, misplaced.
In Ratnagiri Gas & Power (P) Ltd.5 the prayer in the Writ Petition, filed by the respondent before the High Court, was:-
(A) Issue an appropriate writ, order or direction, quashing the action of the Respondents, and in particular the decision dated 4.10.2010 of the Respondent No.1, as communicated to the Petitioner vide letter dated 6.10.2010 whereby bid of the Petitioner has been rejected and the entire bidding process for the completion of the breakwater of LNG Terminal of Dabhol Power Project, Maharashtra, has been annulled; and (B) Issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the Respondent No.1 to formalise the awarding of the contract for the DABHOL PROJECT to the Petitioner; and (C) Issue any other appropriate writ, order or direction, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
When the Writ petition came up before the High Court, the counsel for the respondent withdrew the writ petition, and the accompanying application, reserving liberty to seek redress in case the tender, which was floated, sought to exclude the respondent from competing for allotment of the work in question. The said writ petition questioned the validity of the Board resolution of the appellant and the rejection of the bid offered by the respondent both of which related to the issues sought to be agitated in the subsequent Writ Petition in which too the respondent had prayed for quashing of the Board resolution and the rejection of their bid. It is in this context that the Supreme Court observed:-
..There is thus almost complete identity of the subject matter and the issues raised in the two writ petitions and the grounds urged in support of the same, and (b) The challenge to the Board resolution dated 4th October, 2010 and communication dated 6th October, 2010 was withdrawn in toto, with liberty reserved to RDS to file a fresh petition for redress only in case the fresh tender to be floated by the appellant for allotment of the works in any manner sought to exclude RDS from participation in the same. This necessarily implies that if RDS was allowed to participate in the fresh tender process it would have had no quarrel with the annulment of the entire tender process based on the first tender notice. Conversely if the fresh tender notice sought to disqualify RDS from bidding for the works it could seek redress against such exclusion. Liberty granted by the High Court to file a fresh petition was in our considered opinion limited to any such fresh challenge being laid by RDS to its exclusion in terms of any fresh tender notice. The order passed by the High Court did not permit RDS to re-open and re-agitate issues regarding rejection of its bid pursuant to the earlier tender notice and the annulment of the entire tender process, even if the second tender notice sought to disqualify it from competition by altering the conditions of eligibility to its disadvantage. In fresh Writ Petition No.534 of 2011 filed by RDS not only were the amended conditions of the tender notice assailed but the validity of the resolution dated 4th October, 2010 and letter dated 6th October, 2010 was also sought to be re-opened no matter the same was already concluded with the withdrawal of Writ Petition No.8252 of 2010. RDS sought to use the liberty to challenge the amended terms of eligibility to re-open what it could and indeed ought to have taken to a logical conclusion in Writ Petition No.8252 of 2010. If the intention behind withdrawal of the Writ Petition No.8252 of 2010 was to come back on the issues raised therein there was no need for any such withdrawal, which could if taken to their logical conclusion have given to RDS the relief prayed for in the latter writ petition without even going into the question whether exclusion of RDS in the second tender notice was legally valid. Besides, the withdrawal of the earlier writ petition was a clear acknowledgment of the fact that the grievance made by RDS regarding the rejection of its bid had been rendered infructuous as the works in question remained available for allotment in a fresh tender process with everyone otherwise eligible to compete for the same being at liberty to do so. Inasmuch as and to the extent writ petition No.534 of 2011 filed by RDS challenged the rejection of the tender and the annulment process in a second round despite withdrawal of the earlier writ petition filed for the same relief, it was not maintainable. The scope of writ petition no.534 of 2011 was and had to be limited to the validity of the amendment in the conditions of eligibility introduced by RGPPL in the second tender notice issued by it. Question no.1 is answered accordingly.. (emphasis supplied).
In the light of the law declared by the Supreme Court in Ratnagiri Gas and Power Private Limited5, it was open to the petitioner herein to question the validity of the appellate order in subsequent writ proceedings as the earlier Writ Petitions were withdrawn with liberty to prefer statutory appeals. It was, however, not open to them to file Writ Petitions afresh questioning the very same assessment orders dated 05.11.2012 which were under challenge in the earlier Writ Petitions, as they were not granted liberty, when the earlier Writ petitions were dismissed as withdrawn, to file Writ Petitions afresh questioning the validity of the assessment orders dated 05.11.2012.
II. DOES THEN FIRST RESPONDENT LACK JURISDICTION, UNDER THE CENTRAL SALES TAX ACT, 1956, TO PASS THE IMPUGNED ORDERS OF ASSESSMENT DATED 05.11.2012?
Section 2(4) of the A.P. VAT Act defines assessing authority to mean any officer of the Commercial Tax Department, authorised by the Commissioner, or as may be prescribed, to make any assessment in such area or areas or the whole of the State of Andhra Pradesh. Section 3-A empowers the State Government to appoint as many Commercial Tax Officers, as they think fit, for the purpose of performing the functions respectively conferred on them by or under the Act; and such Officers shall perform the said functions within such area or areas or the whole of the State of Andhra Pradesh as the Government or any authority or officer empowered by them in this behalf may assign to them. Rule 59(1) of the A.P. VAT Rules, 2005 stipulates that, for the purpose of exercising the powers specified in column (2) of the table therein, the authorities, specified in column (3) thereof, shall be the authorities prescribed. Prior to its amendment, with effect from 21.01.2013, Rule 59(1)(4)(ii) of the A.P. VAT Rules stipulated that an Officer, not below the rank of Deputy Commercial Tax Officer of the Division concerned, as authorised by the Deputy Commissioner concerned, in case of the dealers in the territorial jurisdiction of the Division concerned, was empowered to pass an order of assessment.
In Sri Balaji Flour Mills1 a Division bench of this Court held that although, under Section 21(4) of the A.P. VAT Act, the authority prescribed can take up assessment, reading Section 43 of the A.P. VAT Act and Rule 59(1)(4)(ii)(b) and (d) and 59(7) of the A.P.VAT Rules, the only conclusion would be that, unless and until there is a separate authorization to undertake assessment, an officer authorized to audit the accounts of a VAT dealer cannot undertake assessment; if the rule making authority intended that the same officer, who was authorized to audit, could also undertake assessment either under Rule 25(1) or Rule 25(5), there would not have been any necessity to separately mention about the authority prescribed for the purpose of assessment and for the purpose of audit, as seen from Rule 59(1)(4) for the purpose of assessment and Rule 59(1)(7) for the purpose of audit; and assessment, without authorization of the higher official as specified in Rule 59(1)(4)(ii)(b) and (d), is without authority or jurisdiction, and contravenes not only Section 21(4) but also Rule 59(1). The law declared by the Division Bench of this Court, in Sri Balaji Flour Mills1, would have required this Court to ascertain whether the first respondent was authorized to pass an assessment order, as it would relate to his jurisdiction to pass such an order, provided the order of assessment was passed under the A.P. VAT Act. The assessment in the present case is, however, not under the A.P. VAT Act but under the Central Sales Tax Act, 1956.
Section 9(2) of the Central Sales Tax Act, 1956 provides that, subject to the other provisions of the Act and the Rules made thereunder, the authorities, for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including interest or penalty, payable by a dealer under the Central Sales Tax Act as if the tax or interest or penalty by such a dealer under the Act is a tax or interest or penalty payable under the general sales tax law of the State. Rule 2[c] of the Central Sales Tax (Andhra Pradesh) Rules, 1957 defines appropriate assessing authority to mean (i) in the case of a dealer who is liable to pay tax under the general sales tax law of the State, the assessing authority under the said law; (ii) in the case of any other dealer, the assessing authority under the general sales tax law of the State who would have jurisdiction to assess the dealer if he were carrying on business inside the State. Rule 14- A(1)(a) stipulates that, every dealer registered under Section 7 of the Act and every dealer liable to pay tax under the Act, shall submit a return in Form CST VI (in duplicate) showing the total and net turnover of his transactions, including those in the course of inter-State trade or commerce, during the preceding month, and the amount or amounts collected by way of tax. Sub-Rule (5) of Rule 14-A stipulates that, if the return or returns are filed within the prescribed time by the dealer and such return or returns are found in order, the return or returns shall be accepted as self- assessment, subject to adjustment of any arithmetical errors, apparent on the face of the said return or returns. Sub-Rule (5A) stipulates that every dealer shall be deemed to have been assessed to tax, based on the returns filed by him, if no assessment is made within a period of four years from the date of filing of the return. Under Sub-Rule (6) if no return or returns have been submitted by the dealer, as required by sub-rules (1) and (2), or if any return or returns submitted by him appear to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such enquiry as he considers necessary, and after giving the dealer an opportunity of proving the correctness and completeness of the return or returns submitted by him, determine the turnover to the best of his judgment and finally assess in a single order the tax or taxes payable under the Act. Rule 15 stipulates that every dealer, liable to registration under Section 7 of the Act, shall send to the appropriate assessing authority, in whose jurisdiction the dealer has a place of business, a declaration stating the name of the person who shall be deemed to be the manager of such dealers business for the purpose of the Act; all returns and statements submitted by such manager, shall be binding on the dealer; and all such declarations may be revised from time to time.
The petitioner was assessed to Central Sales Tax by the assessing authority in the exercise of his powers under the Central Sales Tax Act (A.P.) Rules. As noted hereinabove appropriate assessing authority has been defined, under the Central Sales Tax (Andhra Pradesh) Rules, 1957, to be the assessing authority under the General Sales Tax Law of the State. While Section 2(4) of the AP VAT Act defines assessing authority to mean any officer of the Commercial Tax Department authorised to make assessment (1) by the Commissioner and (2) as may be prescribed, the power to make assessment, under Section 21(3) and (4) of the AP VAT Act, is conferred only on the prescribed authority. Rule 59(1) of the A.P. VAT Rules stipulates that the Commercial Tax Officer shall be the prescribed authority only if he has been authorised by the Deputy Commissioner (CT) to make assessment. The first respondent falls within the definition of assessing authority under Section 2(4) of the AP VAT Act and Rule 2[c] of the Central Sales Tax (A.P.) Rules. Unlike an assessment under the A.P.VAT Act, which can be made only by the prescribed authority, the power to make assessment under the Central Sales Tax Act and the Central Sales Tax (Andhra Pradesh) Rules has been conferred on the assessing authority. The judgment in Sri Balaji Flour Mills1, which relates to the exercise of jurisdiction to make an assessment under the AP VAT Act, would not automatically apply to an assessment made under the Central Sales Tax Act.
III. THE IMPUGNED ASSESSMENT ORDERS DATED 05.11.2012 DO NOT BEAR THE BRAND OF INVALIDITY ON THEIR FOREHEAD:
The assessment orders, passed by the 1st respondent herein on 05.11.2012, do not bear the brand of invalidity on their forehead. An order, even if not made in good faith, is still capable of legal consequences. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This is equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. (Board of Trustees of Port of Kandla Port v. Hargovind Jasraj ; Smith v. East Elloe Rural District Council ). Even if the order is void/voidable, the party aggrieved thereby cannot decide that the said order is not binding upon them. They must approach the Court and seek such a declaration. The order may hypothetically be a nullity and yet, even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the Petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person. Exercise of power under Article 226 of the Constitution is discretionary and the Court may, in appropriate cases, refuse to exercise its discretionary jurisdiction for good and valid reasons. (Krishnadevi Malchand Kamathia & Ors. v. Bombay Environmental Action Group and Ors. ; Board of Trustees of Port of Kandla Port10; Pune Municipal Corporation v. State of Maharashtra ; State of Punjab and Ors. v. Gurdev Singh ; R. Thiruvirkolam v. Presiding Officer and Anr. , State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors. and Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc. ). We see no reason to undertake a detailed examination as to whether Rule 59 of the A.P. VAT Rules, which are applicable to assessments made under the A.P. VAT Act, would also apply to assessments made under the CST Act, as we are satisfied that the discretionary jurisdiction of this Court, under Article 226 of the Constitution of India, should not be exercised to entertain these Writ Petitions as their very institution is an abuse of the process of Court.
IV. ABUSE OF PROCESS OF COURT:
As was noted by this Court, in the order in W.P. No.9175 of 2013 dated 01.04.2013, the Commercial Tax Officer had filed a counter-affidavit, a copy of which had also been served on the petitioner. It is only after receipt of the counter-affidavit and its enclosures did the petitioner choose to withdraw W.P. No. 9168, 9175 and 9176 of 2013. These Writ Petitions were filed by the petitioner contending that the assessment orders dated 05.11.2012 were passed in violation of principles of natural justice as their objections, in their letter dated 22.10.2012, had not been considered before the said assessment orders were passed. Along with the counter-affidavit in W.P. No.9175 of 2013, the 1st respondent submitted documentary evidence to show that
22.10.2012 was a public holiday in view of Durgastami; all public offices were closed on that day; and the petitioner could not have submitted the representation to them on 22.10.2012. The first respondent also submitted copies of their office seal to show that the seal, allegedly acknowledging receipt of the petitioners objection on 22.10.2012, did not belong to their office; there was a distinction in the seals on the letters of objection dated 22.10.2012 submitted in respect of the three assessments; while two of these seals, affixed in acknowledgment of receipt of the letter dated 22.10.2012, were oval in shape, the other was a round seal; a close examination of their office seal showed that the letters OCT (representing the month of October) were very close to each other; the letters OCT, contained in the seal affixed on the petitioners objection letter dated 22.10.2013, were more spacious; the stars in the original seal, and the stars of the seal affixed on the petitioners petition dated 22.10.2013, were different and distinguishable; the font of the letters on the original seal, and the seal affixed on the alleged petitions dated 22.10.2013, were dissimilar; while the objections were addressed to the Commercial Tax Officer, Sultan Bazar, acknowledgments were allegedly obtained by the petitioner from the office of the Deputy Commissioner (CT) Division; the Commercial Tax Office, Sultan bazaar has its own seal, and has the practice of giving acknowledgments separately, if any documents are filed before them; and this goes to show that the petitioner did not submit any representation on 22.10.2012, and they had fabricated and forged the so called objection letter dated 22.10.2012 with the sole intention of misleading this Court and, thereby, securing undue advantage.
The 1st respondent herein also enclosed, along with the counter-affidavit in W.P. No.9175 of 2013, the letter addressed by the Deputy Commissioner (CT), Durg, Chattisgarh State dated 15.07.2012 that the C Forms produced by the petitioner from M/s. M.M. Sale Corporation were not issued by their division; the series of the C Form book, bearing the said numbers, were not issued by their Division; the C Forms were fake; M/s. M.M. Sales Corporation was earlier allotted a TIN number on 01.05.2004, and were registered for trading in edible oil and cereals only; their TIN number was cancelled on their application dated 24.06.2010; no Central Sales Tax number was issued to them at all; and since the whole transaction extended to Rs. 27.74 crores, and Rupees Three Crores of State revenue was involved, it was necessary to take further action. The respondents herein were requested to furnish details of the mode of payment, cheque numbers, name of the bank, mode of dispatches etc., for taking further action. Also among the enclosures, to the counter-affidavit filed in W.P. No.9175 of 2013, is the petitioners letter dated 04.01.2013 enclsoing thereto the letter of the Deputy Commissioner (CT), Durg, Chattisgarh State dated 19.07.2012 that the C Forms had been issued to MM Sales Corporation with effect from 01.05.2014 as they were a registered dealer for trading of goods; and the C Forms be accepted. Pursuant thereto the respondents herein addressed letter dated 26.02.2013 to the Deputy Commissioner (CT), Durg Chattisgarh State for cross verification of the C Forms. The Deputy Commissioner (CT), Durg, Chattisgarh State, by letter dated 27.02.2013, informed the respondents herein that M/s. M.M. Sales Corporation was a registered dealer under the VAT Act; they did not hold any Central Sales Tax registration number; the registration number of the dealer had been cancelled on 24.06.2010; the letter dated 19.07.2012 had not been issued by their office; it was not signed by her; and it appeared, prima facie, to be a forged document. A copy of the counter-affidavit, wherein the aforesaid allegations are made and to which the aforesaid documents were enclosed, was handed over to the Counsel for the petitioner, and this fact is noted by this Court in its order in W.P. No.9175 of 2013 dated 01.04.2013. It is evident, therefore, that the petitioner had sought permission to withdraw the Writ Petition with liberty to pursue the statutory remedy of an appeal as they did not wish to have the said Writ Petitions adjudicated on its merits.
Though serious allegations of fabrication and forgery were made in the counter-affidavits filed by the 1st respondent herein in W.P. No.9175 of 2013, the affidavit filed in support of the present writ petitions are silent on these aspects. In the affidavits filed in support of the present Writ Petitions, the petitioner has neither referred to the contents of the counter-affidavit filed by the 1st respondent in W.P. No.9175 of 2013 nor to the contents of the documents enclosed thereto. No explanation is forthcoming from them regarding the grave and serious allegations of the C Forms and the letters of the Deputy Commissioner (CT) Durg, Chattisgarh State, being forged and fabricated. In order to sustain and maintain the sanctity and solemnity of proceedings in law courts it is necessary that parties should not make false or, knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the Court where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by recourse to misrepresentation, and conceals material facts, it does so at its own risk. Such a party must be ready to take the consequences that follow. There is a compelling need to take a serious view in such matters to ensure purity in the administration of justice. (Vijay Syal v. State of Punjab ). As a petition containing misleading and inaccurate statements, if filed to achieve an ulterior purpose, amounts to an abuse of the process of the court, the litigant should not be dealt with lightly. A litigant is bound to make full and true disclosure of facts. (Manohar Lal v. Ugrasen ; Tilokchand Motichand v. H.B. Munshi ). Whenever the court comes to the conclusion that its process is being abused, it would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the courts to deter a litigant from abusing the process of the court by deceiving it. (Manohar Lal19; State of Haryana v. Karnal Distillery Co. Ltd. Sabia Khan v. State of U.P. ; Abdul Rahman v. Prasony Bai , S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Oswal Fats & Oils Ltd. v. Commr. (Admn.) ). It is the duty of the High Court to ensure that its judicial process is not abused and its order does not become an instrument or aid to overreach the adversary. (M.V. Venkataramana Bhat v. Returning Officer and Tahsildar ).
Where the controversy stood concluded in the earlier round of litigation, a second writ petition should not be entertained by the High Court. A second writ petition for the same relief is an abuse of the process of the Court. (State of T.N. v. Amala Annai Higher Secondary School ). When a person invokes the equitable and extraordinary jurisdiction of the High Court, under Articles 226/227 of the Constitution, he must approach the court not only with clean hands but also with a clean mind, a clean heart and a clean objective. The judicial process should never become an instrument of oppression or abuse or a means to subvert justice. He, who seeks equity, must do equity. The legal maxim Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, means that it is the law of nature that one should not be enriched by the loss or injury to another. (Manohar Lal19; Ramjas Foundation v. Union of India , K.R. Srinivas v. R.M. Premchand ; Noorduddin v. Dr. K.L. Anand ).
In Mohanlal6, the Rajasthan High Court, after referring with approval to its earlier judgment in Fatehlal v. State of Rajasthan , held:-
An antisocial adventurer cannot claim for his nefarious and injurious activities any greater legal regard than for the defence of society, itself. If members belonging to higher status in life should show scant regard for the laws of this country which are for public good, for protecting the common man, the consequential punishment for the violation of such laws must be equally deterrent and such person should be made to suffer inequital for the harm he has done to the society. I am, therefore, convinced that it is time that exploitation abuse and misuse of equitable jurisdiction is stopped, as founding fathers never intended it to make it an "Allaudin's lamp" for providing protective umbrella to all inequitable evil geniuses and social parasites. Anti-social dishonest and unjust litigants cannot use smoke screen of 'natural justice' to perpetuate unnatural injustice. Tainted hands cannot be allowed to touch pure fountains of justice (emphasis supplied) The power, under Article 226 of the Constitution of India, is discretionary and is exercised only in furtherance of the interest of justice and in larger public interest, and not merely on a legal point being made out. The interest of justice and the public interest coalesce. They are very often one and the same. The Court has to weigh public interest vis--vis private interest while exercising its discretionary powers. (Ramniklal N. Bhutta v. State of Maharashtra ; Manohar Lal19). It would be wholly inappropriate for this Court, in the aforesaid facts and circumstances, to exercise its discretion to entertain the present Writ Petitions filed by the petitioner, questioning the very same assessment order dated 05.11.2012, after the earlier writ petitions filed by them were dismissed as withdrawn.
V. CONCLUSION:
For the reasons aforementioned we refrain from exercising the discretionary jurisdiction, under Article 226 of the Constitution of India, to entertain these Writ Petitions which have been filed questioning the very same assessment orders of the 1st respondent dated 05.11.2012 which were under challenge in W.P. No.9175, 9176 and 9168 of 2013. As filing of these Writ Petitions is an abuse of process of Court, they are dismissed with exemplary costs of Rs.25,000/-, in each of these three Writ Petitions, which the petitioner shall pay to the State Government within four weeks from the date of receipt of a copy of this Order. Miscellaneous petitions pending, if any, shall also stand dismissed.
______________________________ (RAMESH RANGANATHAN, J) ___________________________________ (M.SATYANARAYANA MURTHY, J) Date:27-08-2014