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2001 DIGILAW 882 (AP)

Jawaji Industries v. Commercial Tax Officer [FAC]

2001-08-14

B.SUBHASHAN REDDY, P.S.NARAYANA

body2001
ORDER : The writ petition is filed for a writ of Certiorari or any other appropriate writ or direction to quash the impugned reassessment order passed by the respondent on 15.6.2001 for the assessment year 1997-98 as the same was passed in gross violation of principles of natural justice and also to declare that the petitioner is not liable to purchase tax u/s 6-A of the A.P. General Sales Tax Act, 1957 in view of the decision of Sales Tax Appellate Tribunal in the case of Kalyani Enterprises which is binding on the respondent and also for passing other suitable orders in the ends of justice. 2. The facts in brief are as follows; The respondent herein had summarily issued an ex parte order dated 15.6.2001 referring to controversy of assessment of turnover u/s 6-A by way of earlier provisional assessment, the order of the Appellate Deputy Commissioner there on, the revision by the Joint Commissioner and the disposed of appeal on provisional assessment by Tribunal as infructuous. It is further stated that the subsequent orders of Joint Commissioner and the Sales Tax Appellate Tribunal pertaining to provisional assessment for April to June 1997 have necessitated examination of assessment record. It was further stated that final assessment supercedes the provisional assessment and the respondent having passed final assessment order on 9.1.1999 without controversy and having got the petitioner's Tribunal appeal against the order of the Joint Commissioner in respect of provisional assessment disposed of as infructuous, cannot resort to redoing the final assessment and making addition as if there is decision on merits justifying the levy. It was further averred that the respondent re-fixed the turn over making an addition of Rs.14,83,430/- as purchase turnover of logs for entire year and raised additional demand of Rs.1,78,012/- and the levy of purchase tax is illegal since the Sales Tax Appellate Tribunal has held in the case of KALYANI ENTERPRISES that the levy of purchase tax on logs cut into sizes is invalid following the decision of the Supreme Court in the case of Deputy Commissioner Of Sales Tax Vs Pio Food Packers and the decision of the Madras High Court in State Of Tamil Nadu Versus C Kanchanamala. It was further averred that the decision is binding on all the authorities under the Act as held by this Court in The State Of Andhra Pradesh Vs. It was further averred that the decision is binding on all the authorities under the Act as held by this Court in The State Of Andhra Pradesh Vs. Hyderabad Asbestos Cement Products Limited, Hyderabad. Further it is averred that in any case, the respondent observed in the assessment order that the petitioner is not eligible for set off of tax paid at the preceding point of sale as the logs were purchased from riots and that the respondent over looked the crucial fact that when he is levying purchase tax in the petitioner's assessment itself, it should stand reduced from the tax payable on cut sizes from the logs. 3. The petitioner also had specifically stated that the impugned order dated 15.6.2001 passed by the respondent is without jurisdiction and passed in violation of principles of natural justice without issuing show cause notice. It was also further stated that though appeal lies against the impugned order, the petitioner cannot be exposed to pursue the appeal remedy against the order passed in gross violation of principles of natural justice deprived of opportunity to defend its case and that the writ petitioner is under pressure of demand of Rs.1,78,000/-. 4. The learned Government Pleader was called upon to get instructions on the aspect whether notice had been given and that an opportunity had been given to the writ petitioner before making the impugned order. The learned Government Pleader on the basis of the written instructions had submitted that no such notice or opportunity was given to the petitioner in this regard. Hence, we are satisfied that the impugned order was made by the respondent without issuing any notice muchless giving any reasonable opportunity and hence it is in gross violation of principles of natural justice. 5. In Law of Writs by Justice P.S. Narayana, I Edition, at page 256, the opinion expressed on the principles of natural justice is as follows; "Natural justice is one of the most essential concepts of the Constitutional Law and is of very ancient origin. This may be understood as justice that is simple and elementary as distinct from justice that is complex, sophisticated and technical. This may be understood as justice that is simple and elementary as distinct from justice that is complex, sophisticated and technical. It is also popularly known as "fair play in action", "social justice", "universal Justice" "fundamental Justice", "substantial Justice etc., The concept of Natural Justice also differs from country to country and the principles applied are not uniform in nature though the fundamental concept of fair play in action may be the same. The Principles of Natural Justice are easy to proclaim but their precise extent is far less easy to define. In modern times, opinions have some times been expressed to the effect that Natural Justice is so vague as to be practically meaningless but these can be regarded as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured and therefore it does not exist. It is no doubt well settled that these principles are to be observed by Courts Judicial bodies and Quasi Judicial authorities too." 6. In the same law of Writs at page 259 while dealing with the Aims of Rules of Natural Justice, the following opinion is expressed. "The aim of Rules of Natural Justice is to prevent miscarriage of Justice which may occur if reasonable hearing is not given to the party before making a decision against him. The question whether the requirements of Natural Justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point the Constitution of the Tribunal and the rules under which it functions. Natural justice is not a static concept. It is not "extra legal" though it may be "extra legislative". 7. In the light of the settled principles relating to the Principles of Natural Justice, when a Tribunal or an authority is expected to decide the matter in accordance with the Principles of Natural Justice and when such an opportunity had not been given, such order made by the Tribunal or Authority is not sustainable in law. In the light of the above settled legal position, we have no hesitation to hold that the impugned order made in gross violation of principles of natural justice is liable to be quashed. 8. For the foregoing reasons, we hereby set aside the impugned order dated 15.6.2001 made by the respondent and quash the same. In the light of the above settled legal position, we have no hesitation to hold that the impugned order made in gross violation of principles of natural justice is liable to be quashed. 8. For the foregoing reasons, we hereby set aside the impugned order dated 15.6.2001 made by the respondent and quash the same. However, this order shall not preclude the respondent from issuing a fresh notice and dispose of the matter in accordance with law by affording an opportunity. 9. The writ petition is accordingly disposed of. No order as to costs.