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A.ABDUL GAFOOR versus THE DEPUTY COMMERCIAL TAX

High Court of Madras

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A.Abdul Gafoor v. The Deputy Commercial Tax - WRIT PETITION No.13415 of 1999 and WRIT PETITION No. 13416 of 1999 [2002] RD-TN 307 (4 May 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 04/05/2002

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

WRIT PETITION No.13415 of 1999 and WRIT PETITION No. 13416 of 1999 and W.P.No. 13417 to 13419 of 1999

A.Abdul Gafoor,

Lucky Hardwares,

Ayyampettai ....Petitioner in all the petitions -vs.-

1.The Deputy Commercial Tax

Officer, Papanasam

2.The Joint Commissioner,

Commercial Taxes(SMR)

Chennai

...Respondents in all the petitions Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari as stated therein. For petitioner ...Mr.K.Mani

For respondents ...Mr.B.Parthasarathy-GA(T)

:COMMON ORDER



Petitioner praying to issue writs of certiorari to call for the records in No.TI/76230/95 SMR No.717 of 1996 in W.P.No.13415 of 1999, SMR No.718 of 1996 in W.P.No.13416 of 1999, SMR No.719 of 1996 in W.P.No.13417 of 1999, SMR No.720 of 1996 in W.P.No.13418 of 1999 and SMR No.721 of 1996 in W.P.No.13419 of 1999 respectively on the file of the second respondent and quash the order dated 23.6.1998.

2.In the affidavits filed in support of the writ petitions, the petitioner would submit that the petitioner is carrying on business in Hardwares, Paints, Varnish, Coir, Leather etc., that in respect of the assessment years 1989-1990 in W.P.No.13415 of 1999, 1990-1991 in W. P.No.13416 of 1999, 1991-1992 in W.P.No.13417 of 1999, 1992-1993 in W.P.No.13418 of 1999 and 1993-1994 in W.P.No.13419 of 1999 respectively the petitioner purchased hand pumps, filter points, gate valves, G. I.Fittings Check valves socks and other water supply materials for which the petitioner has issued 'C' form in respect of the inter-state purchase; that even though the petitioner requested the assessing authority as early as on 26.9.1989 to include G.I.fittings, hand pumps, filter points gate valves etc., the first respondent came to the conclusion that the petitioner had misused the 'C' form and levied penalty under Section 10(A) of the CST Act, against which the petitioner filed an appeal as a result of which the Appellate Assistant Commissioner (CT) Thanjavur set aside the penalty with an observation that the appellant was under bona fide belief in his representation, as the impugned goods had been subjected to tax for all these years by the assessing officer without any interference and hence the representation should not be considered to be false to the knowledge of the appellant and hence the provision under Section 10(b) of the CST Act could not be attracted and levied minimum penalty and disposed of all the appeals.

3.In view of that order, the Joint Commissioner Commercial Taxes, Chennai issued a suo motu revision under Section 34 of the Act and arrived at the conclusion that the Appellate Assistant Commissioner cannot take lenient view and also observed that the assessee should be diligent in pursuing the representation made on 26.9.1989 in getting the goods incorporated in the certificate and thus, the Joint Commissioner set aside the order of the Appellate Assistant Commissioner and restored the order of the Assessing Officer; that the petitioner filed Tax Case Appeal under Section 37 of the TNGST Act read with Section 9(2) of the Central Act; that the petitioner filed T.C.Nos.455 to 45 9 of 1999 and the Division Bench of this court, has dismissed the same on 23.6.1999 as not maintainable and hence, the petitioner would pray to quash the order passed by the second respondent dated 23.6.199 8.

4. No counter affidavit has been filed. However, the learned Government Advocate (Taxes) would appear and argue on behalf of the respondents on instructions.

5.During arguments, the learned counsel appearing on behalf of the petitioner would first take up the assessment year 1989-1990 and take the court to the order of the second respondent and would show that Under Section 34 of the TNGST Act, power is given to the Joint Commissioner to suo motu initiate the proceedings against the order of the Appellate Assistant Commissioner, Commercial Taxes; that both under TNGST Act and CST Act, appeals were filed and entertained in respect of the assessment order for the taxation years 1989-1990 in W.P.No.134 15 of 1999, 1990-1991 in W.P.No.13416 of 1999, 1991-1992 in W.P.No.1 3417 of 1999, 1992-1993 in W.P.No.13418 and 1993-1994 in W.P.No.13419 respectively all dated 7.3.1995 in respect of the penalty levied under Section 10(A) of the Act.

6.The learned counsel would continue to argue that the situations before 1992 and subsequent to that are different in the sense that after 1992, the Special Taxes Tribunal was constituted; that under Sections 37 and 38 of the Act, against the order, whether in TNGST Act or Tribunal against the order of the Joint Commissioner, Tax Case Appeal was filed in the High Court, but the Division Bench against the order dated 23.6.1999 dismissed the same without prejudice to any other remedy, which may in law is open to the appellant and therefore, they initiated proceedings before the Joint Commissioner for suo motu revision by the authority in the above matters and the authority below has rendered that the penalty levied in respect of cases under the CST Act for misuse of 'C' form would normally be assessed at consistently read and the learned counsel would cite the order dated 7.3.1995 in the proceedings of the Deputy Commercial Tax Officer, Papanasam in CST 215856/1989-1990, 1990-1991, 1991-1992, 1992-1993 and 1993-1994 respectively to ultimately over ruling the objections finally levy a penalty of Rs.21,051/- in W.P.No.13415 of 1999, Rs.11,738/- in W.P.No.13416 of 1999, Rs.27,038/- in W.P.No.13417 of 1999, Rs.28,856/- in W.P.No.13418 of 1999 and Rs.2,297/- respectively under Section 10(A) of the CST Act 1956 as proposed in the notices; that the penalty was minimised and has pointed out in the order; if there is a technical violation, we cannot levy penalty under Section 10(b) of the Act. In the above order of the Single Judge of this court quoting G.O.Ms.No.61 Commercial Taxes and Religious Endowments Department dated 24.1.1984, it is stated therein that the assessing authorities are to take a lenient view, wherever the dealers purchased goods on the basis of the 'C' forms, without including them in the registration certificate it is inadvertently, provided that dealer was eligible to have those of goods included in the registration certificat e that the dealer's contention throughout was that the goods in question would also come under the term "hardware". The fact that the dealer had sought amendment by itself could not be taken as any admission by the dealer, particularly in the light of the fact that in all the earlier assessment orders, the Department itself had described the 'dealer' as a 'dealer' in "general hardware and non-ferrous metals"....... that there were many materials for the Tribunal to come to the conclusion that the dealer was acting bona fide in issuing 'C' forms as it did, and its decision did not merely rest on the mere claim of the dealer that it had acted bona fide in issuing 'C' forms as it did. In the above judgment, it all depends whether in issuing 'C' form, the dealer had acted bona fide or not.

7. Continuing to argue, the learned counsel would show that the Joint Commissioner himself had considered the judgment reported in CENTRAL COOPERATIVE SUPPLY AND MARKETING SOCIETY LIMITED vs. TAMILNADU (19 80 (45) STC 21) wherein it is held that on account of bona fide is not an expression of 'hard', but is a positive circumstance, which has to be established by relevant and acceptable materials. The learned counsel would also cite four more judgments respectively;

i)DHARMAPURI DISTRICT CO-OPERATIVE SUGAR MILLS LIMITED -vs.- STATE OF TAMILNADU (82 STC.296)

ii)STATE OF TAMILNADU -vs.- BETALA INDUSTRIES (88 STC.328) iii)STATE OF TAMILNADU -vs.-J.B.KHANNA AND COMPANY (98 STC.515) iv)CORONATION ARTS CRAFTS -vs.- STATE OF TAMILNADU (109 STC.392) So far as the first judgment cited above is concerned, it is held therein that 'in imposition of penalty, it is necessary to find that the act or omission of the assessee was intentional and whether mens rea was present.' So far as the second judgment cited above is concerned, it is held therein that 'to bring home the offence under Section 1 0(b), guilty animus or mens rea is essential. In the absence of mens rea, no penalty can be imposed under Section 10-A.' In the third judgment cited above, the Division Bench of this court has held, dismissing the petition, that since the Tribunal, the highest fact-finding authority, had found that the letter in question was genuine, in view of the notification dated January 24,1984, thereby directing a lenient view to be taken in such matters, the Tribunal's order was justified. In the last judgment cited above, it is held:

"that the bona fide use of the form by the dealer, who had used these items in the goods manufactured by it had been accepted by the assessing officer. That plea could not be said to have been lacking in bona fides as it had uniformly been accepted in all the earlier assessment orders and the certificate was also subsequently amended to include these other items. Having regard to these facts, the dealer could not be said to have committed an offence under Section 10(b) of the Central Sales Tax Act, 1956(see para 4)" "4.In this case, the bona fide use of the form by the assessee, who had used these items in the goods manufactured by him has been accepted by the assessing officer. That plea cannot be said to have been lacking in bona fides as it had uniformly been accepted in all the earlier assessment orders and the certificate was also subsequently amended to include these other items. Having regard to these facts, the assessee cannot be said to have committed an offence under Section 10 (b) of the Central Sales Tax Act. We therefore set aside the imposition of penalty."

8.In reply, the learned Government Advocate on the Taxation Side citing Section 7 of The Central Sales Tax Act and turning to page 9 of the file would show that the application has been made by the petitioner wherein he had declared 'iron, paint, varnish, coir and leather washer;' that at page 13 he has mentioned 'Hardwares, paints, varnish, coir, leather-washer'; that at page 21 of the file in the letter dated 28.7.1989 the petitioner requested change of certificate. He has stated in the affidavit that he had submitted the application requesting for the registration certificate and by letter dated 25.3.1988, he had acknowledged the receipt of the certificate, but contrarily he has stated in the affidavit as though originally a certificate had been issued in respect of items such as 'hardwares, coir leather etc.,' He requested as per his letter dated 26.9.1989, 'to include G.I. Fittings, hand pumps, filter points, gate valves etc.,' Citing the letter dated 18.10.1989 sent from the office of the Deputy Commercial Tax Officer, Papanasam wherein the petitioner has been warned that penalty will be levied if he dealt with other materials than for what he had been permitted in the Registration Certificate; that since the petitioner was found to be dealing with that under Sections 10(A) and 10 (b) of the Act, which are the relevant penal sections, the petitioner had been found guilty and therefore, the impugned order passed by the authority is fully justified.

9.On such argument, the learned Government Advocate would also cite two judgments;

i)STATE OF TAMILNADU -vs.- S.D.RANGWALA & CO. (108 STC.521)

ii)STATE OF TAMILNADU -vs.- SRINATH PHARMA (110 STC.177)

So far as the first judgment is concerned, it is already extracted supra. So far as the second judgment cited above is concerned, it is held by the Division Bench of this court that once a finding is recorded by the competent authority that the dealer has made a "false representation", that would clearly attract the provisions of Section 10( b) of the Act and no further finding is required that the dealer had also the mens rea.

10.In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both what is assessed by this court is that it is the order dated 2 3.6.1998 passed by the proceedings of the Joint Commissioner, Commercial Taxes, Chennai Suo motu Revision by the office of the Special Commissioner and Commissioner of Commercial Taxes, Chennai wherein the order of the Appellate Assistant Commissioner (CT) Thanjavur was impugned, which itself was based on the assessment made by the Deputy Commercial Tax Officer, Papanasam in GST No.215856/89-90,90-91,91-92,92-93 and 93-94 respectively.

11.The subject matter is pertaining to the assessment of the petitioner by the Deputy Commercial Tax Officer, Papanasam for the years 19 89-90,1990-91,1991-92 and 1993-94 under Section 10(A) of the CST Act levied penalty of Rs.21,051/- in W.P.No.13415 of 1999, Rs.11,738/- in W.P.No.13416 of 1999, Rs.27,038/- in W.P.No.13417 of 1999, Rs.28,856 /- in W.P.No.13418 of 1999 and Rs.2,297/- respectively.

12.It further comes to be known that aggrieved of the order of the assessing officer that the petitioner dealer had preferred an appeal before the Appellate Assistant Commissioner (CT) Thanjavur based on certain reasons and the Appellate Assistant Commissioner (CT) Thanjavur modified the case on certain grounds in exercise of his powers and levied only a penalty of Rs.1,500/- for the year 1989-90, Rs.1,000/- for the year 1990-91, Rs.2,000/- for the year 1991-92, Rs.2,000/- for the year 1992-93 and Rs.500/- for the year 1993-94 respectively; that against the said order of the Appellate Assistant Commissioner ( CT) Thanjavur dated 3.7.1995, proceedings of suo motu revision has been initiated by the Joint Commissioner, Commercial Taxes, Chennai on ground that the controversial letter said to have been written by the appellant to the assessing officer dated 26.8.1989 was fabricated one. It would be argued on the part of the Department that the very act of the dealer having submitted the application for amending the certificate would show that he was not empowered to purchase goods, without the same having been incorporated in the certificate thus, the offence coming to be proved. Therefore, they would justify the action of the Assessing Officer levying penalty under Section 10(A) of the CST Act, particularly in the light of the ruling of the Madras High Court in the case reported in STATE OF TAMILNADU -vs.- AMRUTANJAN LIMITED (97 STC 412) and they would pray to set aside the order of the Appellate Assistant Commissioner (CT) Thanjavur and to restore the order passed by the Assessing Officer dated 7.3.1995.

13.The Joint Commissioner, Commercial Taxes would disclose the facts and circumstances encircling the case very clearly and would accept the case of the Department for the Assessing Officer having levied a penalty of Rs.1,500/- for the year 1989-90, Rs.1,000/- for the year 1990-91, Rs.2,000/- for the year 1991-92, Rs.2,000/- for the year 199 2-93 and Rs.500/- for the year 1993-94 respectively and would find that the Appellate Assistant Commissioner (CT) Thanjavur in setting aside the proposed Assessing Officer's order being erroneous and would set aside the same. Aggrieved, the petitioner has come forward to file the above writ petitions.

14. All these aspects, particularly the judgments delivered by different courts of different upper forums of law, lay emphasis only on Section 10(A) of the Act which lays down that if any person furnishes a certificate or declaration under Sub Section 2 of Section 6 or Sub section 1 of Section 6-A or Sub Section 4 of Section 8 which he knows or has reason to believe to be false, he shall be punished with simple imprisonment, which may extend to six months or with fine or with both and when the offence is a continuing offence with a fine, which may extend to Rs.50/- for every day, during which period, the offence continues. Section 10(b) of the Act would also impose the same punishment, if any person being a registered dealer, falsely represents without purchasing any class of goods, that goods or such nature of goods are covered by the certificate of registration.

15. So far as the order made by the Joint Commissioner, Commercial Taxes, Chennai in passing of the impugned order is concerned, he has jurisdiction to suo motu commence proceedings as he has done in this case and to arrive at his own conclusion, on such subjects as one in hand. He has also followed the procedures established by law with due opportunity for parties to be heard and dealing with the subject in the manner that it has to be dealt with and having its own discussion on the subject based on records and in consideration of the legal points and in exercise of the powers conferred on him by law and has arrived at his own conclusion to set aside the order of the Appellate Assistant Commissioner (CT) Thanjavur restoring the order of the Assessing Officer and in the whole of the said process, the authority concerned cannot be said to have either gone out of jurisdiction or has not followed the procedures established by law or on ground of not affording with such opportunity for parties to be heard and in arriving at his own conclusion to decide the issues in the manner that the authority had done in the order impugned. So far as this court is concerned on a careful study held bearing in mind the legal propositions propounded by different courts, in the manner extracted supra, so far as the order impugned passed by the Joint Commissioner, Commercial Taxes, Chennai is concerned, not only in the conclusion arrived at, but also the manner in which the said conclusion has been arrived at, is not able to find any error apparent on the face of the order of perversity in approach or lack of opportunity, much less in violation of the principles of natural justice or any other such legal infirmities or inconsistencies creeping into the said order and therefore, there is absolutely no reason to interfere with the same.

15.For all the above reasons assigned, this court finds no justifiable cause or reason to interfere with the impugned order dated 23.6.1 998 made under the suo motu revision proceeding of the Joint Commissioner, Commercial Taxes, Chennai.

16.In result, i)all the above writ petitions fail and the same are dismissed.

ii)No cost.

V.KANAGARAJ,J.

14-5-2002

Index:yes

Web site:yes

tsv.

To

1.The Deputy Commercial Tax

Officer, Papanasam

2.The Joint Commissioner,

Commercial Taxes(SMR)

Chennai

Order in

W.P.Nos.13415 to 13419/99




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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