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2007 DIGILAW 948 (MAD)

Gokulam Chemicals Partnership Firm v. Commercial Tax Officer Erode

2007-03-15

K.RAVIRAJA PANDIAN

body2007
Judgment :- In both these cases, assessment made in respect of the assessment year 2002-03 under TNGST Assessment and CST Assessment has been put in issue. 2. It is the case of the petitioner that originally CST assessment has been made accepting the books of accounts of the petitioner. Thereupon, on the basis of the report furnished by the Enforcement Wing Officer, on the basis of the inspection conducted on 09.05.2003, a pre-revision notice was issued and the petitioner was asked to submit his objections. The petitioner submitted his objections on 212. 2006. Immediately on 03.01.2007, the impugned orders have been passed. 3. There is violation of principles of natural justice in passing the orders and the revision of assessment cannot be legally sustainable. This point is raised by the learned counsel for the petitioner. 4. I have heard the learned counsel on either side and perused the material on record. 5. As the point raised in these two petitions is one relating to the assessment orders and the transactions considered by the authorities are one and the same, the facts are not discussed in detail. 6. It is true that assessment orders have already been passed by the Assessing Officer. 7. Further, by invoking the revisional provision vested with him the Assessing Officer, issued notice on the premise that the verification of the accounts relating to E1 purchases and E1 sales thereon revealed that they have effected E1 sales of caustic soda lye and chlorine to the tune of Rs.1,11,00,451/- during the year 2002-03 and claimed exemption and the claim under E1 sales with reference to the statements and ledger accounts, revealed discrepancies which has been extracted in a detailed manner in page 2 of the impugned assessment order dated 03.01.2007 in TNGST 2901418/2002-2003. It was also pointed out by the Assessing Officer that there was no endorsement of sale by transfer of document of title for the goods. In order to claim exemption under Section 6(2)(b) of the CST Act, 1956, the sale must be second and subsequent sale in the course of interstate trade whereas in the above cases, dates of sale invoices raised by the assessees were found prior to the date of invoices of the interstate supplier. In order to claim exemption under Section 6(2)(b) of the CST Act, 1956, the sale must be second and subsequent sale in the course of interstate trade whereas in the above cases, dates of sale invoices raised by the assessees were found prior to the date of invoices of the interstate supplier. The E1 sale value is much lesser than the purchase value in many cases and also the sale value is abnormal and high when compared to the receipt value. Further the Assessing Officer also intimated that there were no materials to show transfer of documents of Title of goods during the movement of goods. 8. In response to the notice, objections have been filed by the petitioner and the objections have been considered and in paragraph 4 of the assessment order, it is stated that the statement filed along with their objection letter was scrutinised. Instead of corroborating each purchase with sales (E1 sales) and reconciling the quantity received and quantity sold as transit sales, the assessees filed two lists viz., one for interstate purchase and other one for alleged E1 sales. Thereby the assessees proved that they could not be able to tally their alleged E1 sales with reference to corresponding interstate purchase. If the petitioner would have reconciled them, the correctness or otherwise of the disputed 114 transactions would have been verified. They failed to give the assessing officer the chance to verify this aspect by adamantly avoiding production of their accounts to the Department Officers. So, it cannot be stated that the revision of assessment has been made without giving an opportunity to the petitioner. 9. The contention of the learned counsel that within few days of the receipt of objection, assessment orders have been passed also cannot be accepted for entertaining the writ petitions, as assessment orders have been passed based upon pre-assessment notice and details are made available to them, orders could be made in a day or two. 10. Above all, an effective, efficacious alternative remedy is very much available to the petitioner. The assessment orders are appealable under Section 31 and further appealable under Section 36. The difficulty of the petitioner to make certain payment for entertainment of appeal, would not by itself be a reason for entertainment of writ petitions. 11. 10. Above all, an effective, efficacious alternative remedy is very much available to the petitioner. The assessment orders are appealable under Section 31 and further appealable under Section 36. The difficulty of the petitioner to make certain payment for entertainment of appeal, would not by itself be a reason for entertainment of writ petitions. 11. Whatever grounds that have been taken in the writ petitions can very well be taken by way of an appeal or further appeal. This was the dictum laid down by the Supreme Court in Union Of India Vs. Tata Engineering & Locomotive Co. Ltd., Reported In AIR 1998 Supreme Court 287, wherein in paragraphs 4 and 5 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." 12. 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." 12. Usual reference can also be had on the Judgment of the Supreme court in the case of State of Goa and Others vs. Leukoplast (India) Ltd., reported in 1997 Vol.106 STC 318, wherein it is held as follows: - "...These were basically questions of fact which should have been agitated before the statutory appellate authority. There was no reason for the assessee to by-pass the statutory remedy and approach the Court with a writ petition and the High Court ought not to have allowed the assessee to by-pass the statutory remedies where the questions could have been properly agitated and ascertained." and also the Supreme Court Judgments in the case of Titaghur Paper Mills co. Ltd. And Another vs. State of Orissa reported in 53 STC 315, Ashok Leyland Limited vs. Union of India and others reported in (1997) 105 STC 152 and also the Division Bench Judgment of this Court in the case of Tamil Nadu State Transport Corporation vs. C.Durai reported in 2005 WLR 136, wherein it is stated that even the violation of the Principles of natural justice cannot be a reason for entertainment of writ petition when an effective, efficacious alternative remedy is available. 13. In view of the very well settled principle of law, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.