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1992 DIGILAW 936 (SC)

Macdowell & Company Limited v. R. Parthasarathy

1992-11-12

B.P.JEEVAN REDDY, LALIT MOHAN SHARMA, S.MOHAN, S.P.BHARUCHA, S.RATNAVEL PANDIAN

body1992
JUDGMENT : In C.A.Nos.2686-2688/86 These appeals arise out of proceedings which were initiated under section 20 of the Andhra Pradesh General Sales Tax Act, 1957 by the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad proposing to revise the assessment of sales tax against the appellant. The appellant filed its objections, which are pending. The appellant also challenged the show cause notice by writ petitions in the High Court, which were dismissed by a short judgment making certain observations on the merits of the questions raised by the appellant and observing that, in view of the fact that the writ petitions were directed against only the show cause notice, no interference was called for. 2. We have heard Mr. Harish Salve in support of the appeals for some time. It appears that the questions which are being raised and which may need consideration are dependant on certain issues of fact. These could be determined only in the proceeding which had been started under section 20 of the Andhra Pradesh General Sales Tax Act, 1957. Instead of taking advantage of the opportunity to put forward its case and evidence, the appellant moved the High Court. We are, therefore, of the view that at this stage no interference was called for with a show cause notice and the appellant should have appeared and contested the proceedings on such grounds as were open to it in law before the Commissioner and if the matter was ultimately decided against it, only then should it have challenged the same by appropriate remedy available in law. In the circumstances, we dismiss the appeals on the said short ground without adverting to or deciding the question of law raised in the writ petitions. The interim order of stay automatically stands vacated on the dismissal of the appeals. 3. The appellant should now appear before the Commissioner and have a decision on merits. We make it clear that, since the merits of the questions raised have not been examined by us, any observation made by the High Court in the impugned judgment shall not be taken into consideration by the Commissioner and that the appellant shall be entitled to raise all questions which may be available to him in law. 4. There will be no order as to costs. In Writ Petition (C) Nos. 446, 448, 1044, 232, 233, 234, 970, 971/89 & C. A. Nos. 968-69/87 5. 4. There will be no order as to costs. In Writ Petition (C) Nos. 446, 448, 1044, 232, 233, 234, 970, 971/89 & C. A. Nos. 968-69/87 5. These writ petitions under Art. 32 of the Constitution and civil appeals have been filed immediately after service of show cause notices, under section 20 of the Andhra Pradesh General Sales Tax Act, 1957. We have heard the learned counsel for the parties for some time and we are of the view that the present petitions and appeals are pre-mature and should not have been filed before the proceedings were concluded by the Commissioner on merits. We are, therefore, dismissing these writ petitions and civil appeals with the observation that the parties may contest the proceedings. After the proceedings arc finally disposed of by orders and if the panies are aggrieved by the orders passed, they may follow the remedy which is available under law. At this stage, we do not consider it necessary to go into the correctness or otherwise of the judgment of this Court in MacDowell & Co. v. Commercial Tax Officer, (1985) 59 STC 277 . The writ petitions & civil appeals are, accordingly, dismissed but, in the circumstances, there will be no order as to costs. The interim orders passed earlier automatically stand vacated. In Civil Appeal No. 255/88 6. The writ petition of the appellant was dismissed by the High Court on the ground that the alternative remedy of appeal was available to the appellant, which had not been exhausted. We agree with this view. The Civil Appeal is accordingly dismissed but without costs. Tins will be without prejudice to the rights of the appellants. In Civil Appeal No. 3973/83 7. The learned counsel for the appellants prays for adjourning this case with a suggestion that the respondent-State may consider certain offers which are being made by the appellant for paying of the entire demand in question. Mr. P.P. Rao, Sr.Adv., has drawn our attention to the ground taken on behalf of the appellant in the Special Leave Petition based upon which this appeal was admitted, viz., pendency of C.A. No.l 118/82 & C.A.570/83 and 572/83, raising identical questions. He has also said that these have now been disposed of by two judgments reported in 1985 (3) SCR 791 and 1987 (1) SCR 945 . He has also said that these have now been disposed of by two judgments reported in 1985 (3) SCR 791 and 1987 (1) SCR 945 . Hence no further question remains to be answered in this appeal and the appeal is fit to be dismissed. 8. We are of the view that, having regard to the aforesaid decisions of this Court, this appeal does not require to be heard by a Constitution Bench. As suggested by M.K. Parasaran let this case be listed before a Division Bench on Tuesday next. In the meantime, Mr. P.P. Rao may take instructions from the respondent as to the offer made by the appellant for payment of the dues.