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2006 DIGILAW 1365 (MAD)

LUX HOSIERY INDUSTRIES LTD. v. COMMERCIAL TAX OFFICER, TIRUPUR NORTH, TIRUPUR

2006-06-15

K.RAVIRAJA PANDIAN

body2006
ORDER K. RAVIRAJA PANDIAN, J. - This is a writ petition filed under article 226 of the Constitution of India challenging the correctness of the order of assessment for the assessment year 2003-04 made against the petitioner. Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioner submitted that the order is ex facie illegal order as the assessing officer committed a manifest error in framing the assessment. The assessee has filed form F. Without rejecting form F, the assessing officer has passed the assessment order, which has been deprecated by the court. He further submitted that the assessee has already filed an appeal against the impugned assessment order before the second respondent. However, he submits that the appellate remedy is onerous because the statute requires, in order to entertain an appeal under section 31 of the Tamil Nadu General Sales Tax Act, 1959 the assessee has to pay 25 per cent of the disputed tax as provided under the proviso to section 31. When the order is an illegal order, the petitioner can move this court under article 226 of the Constitution of India not withstanding filing of the statutory appeal. So, the petitioner is entitled to move a writ petition in spite of an appeal is filed without making the necessary payment. He further contended that, it is well-settled that when the court earlier passed an order that without rejecting form F, assessment cannot be made, when the mistake is pointed out, in spite of the fact of filing an appeal, the writ petition is maintainable. I have heard the arguments of the learned Senior Counsel and I am not able to countenance the submission so made. It is very well established law that the court should not readily interfere with the order of the assessing officer by invoking discretionary power under article 226 of the Constitution of India. As regards the first argument that the impugned order has been framed against the earlier order of this court, hence writ is maintainable, we can easily have the reliance of the Supreme Court decision made in Union of India v. Tata Engineering & Locomotive Co. Ltd. reported in AIR 1998 SC 287 , where the very same argument has been advanced and has been rejected by the Supreme Court. In paragraphs 4 and 5 of the said judgment, the Supreme Court has held as follows : "4. Ltd. reported in AIR 1998 SC 287 , where the very same argument has been advanced and has been rejected by the Supreme Court. In paragraphs 4 and 5 of the said judgment, the Supreme Court has held as follows : "4. In our view, this writ petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow the judgment of the High Court or this court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the Regional Sales Offices, the court cannot stop him from making such enquiries. 5. Mr. Sorabjee, appearing on behalf of the respondents, has complained that the assessments are going on endlessly and without due regard to an earlier judgment of the Patna High Court in respect of an earlier assessment year on the very same issues. Whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. The High Court in exercise of its jurisdiction cannot give guidance to Assistant Collector about the manner and mode in which the assessment should be made." Hence the first argument that the earlier order of the court has not been followed by the assessing officer in passing the assessment and thus writ is maintainable will not hold water for entertainment of the writ petition. Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioner further contended that a huge liability has been levied by the assessing officer by the impugned assessment order. Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioner further contended that a huge liability has been levied by the assessing officer by the impugned assessment order. If the petitioner is directed to prosecute the appeal, at least a direction may be given to the second respondent to entertain the appeal without payment of 25 per cent. Here again, I am not able to accept the argument of the learned counsel as the payment of 25 per cent of the tax is a statutory requirement for maintaining the appeal. This court while exercising power under article 226 cannot re-write the law. When the statute requires that a condition to be complied with in order to maintain an appeal, that has to be complied with by the petitioner in order to have maintenance of the appeal. Hence, I am not able to countenance on both the grounds advanced for maintaining the appeal. The petitioner is having a very effective and efficacious statutory appeal remedy. The writ petition is dismissed. However, it is open to the petitioner to prosecute the appeal already pending by complying with the requirements of statutory provision. No costs. Consequently, connected Miscellaneous petitions are also dismissed.