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TVL. VINCENTS (TIRUNELVELI) versus THE REGISTRAR

High Court of Madras

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Tvl. Vincents (Tirunelveli) v. The Registrar - W.P.No.3838 of 2001 [2002] RD-TN 963 (5 December 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 05/12/2002

CORAM

THE HONOURABLE Mr. JUSTICE N.V.BALASUBRAMANIAN

AND

THE HONOURABLE Mr. JUSTICE K. RAVIRAJAPANDIAN

W.P.No.3838 of 2001

and

W.M.P.No.5439 of 2001

Tvl. Vincents (Tirunelveli)

Bottlers Pvt.Ltd.

rep. by its Director

R. Vijayakumar .... Petitioner -Vs-

1. The Registrar,

The Tamil Nadu Taxation

Special Tribunal

Rajaji Salai, Chennai - 1.

2. The Commercial Tax Officer,

Palayamkottai. .... Respondents Petition under Article 226 of The Constitution of India praying for the issue of writ of certiorari as stated therein. For Petitioner : Mr. S. Ramanathan

For Respondents : Mr. T. Ayyasamy, Spl.G.P.

:O R D E R



(ORDER OF THE COURT WAS MADE BY K.RAVIRAJAPANDIAN,J)

This writ petition is filed against the order of the Special Tribunal dated 12.12.2000 made in TC (R) No.2787 of 1997.

2. The relevant assessment year is 1988-89. The petitioner is a manufacturer of soft drinks under the name and style of Vincents Bottlers Pvt. Ltd. The petitioner's place Of business was inspected by the inspecting officers on 05.10.1989 and records were perused for case study. The assessee in his statement had admitted that he had consumed 6921 Kg of carbon di-oxide during the assessment year. However, on record it was found that they have consumed 5329.095 KG of carbon di-oxide. The statistical inspector was of the opinion that the petitioner would have manufactured more quantity of soft drinks by the use of difference of 1591.905 Kgs of Carbon di-oxide outside the account. Hence statistical survey was conducted. On the basis of the survey, the assessing authority has worked out the use of 1591.905 Kgs of carbon di-oxide should produced 5,17,220/- bottles of soft drinks valued at Rs.4,19,483/- at the rate of Re.0.93 for sweet drinks and at the rate of Re.0.75 for soda water. The said quantity has been treated by the assessing officer as suppressed turnover, taxable at 4. The assessing officer also levied penalty at 1 1/2 times under Section 16(2) of the TNGST Act. Further he also levied penalty under Section 22(2) of the TNGST Act for a sum of Rs.447/-.

3. The assessee had carried the matter on appeal to the first appellate authority. The actual suppression and the penalty of 150 was upheld by the first appellate authority. However, the penalty under Section 22(2) has been remanded for certain verification. In the second appeal before the appellate tribunal, the appellate tribunal took the view that the statistical survey conducted by the Department in the subsequent year without further evidence could not be treated as basis to treat the outcome of the survey as suppression and there was no material for making a revision of assessment by the assessing authority and in that view of the matter set aside the revision of assessment made by the assessing officer. The revenue took the matter as revision before the special tribunal.

4. The special tribunal after considering the argument advanced before it and the finding arrived at by the authorities, set aside the order of the appellate tribunal by restoring the order of the Appellate Assistant Commissioner. While doing so, the special tribunal reduced the penalty under Section 16(2) to 50. That order is now put in issue in the above writ petition.

5. Mr. Ramanathan, learned counsel appearing for the petitioner has made an elaborate argument as to the factual matter of the case, to the effect that the survey has been conducted during single day and in respect of a single person, whereas the assessee was having more than 100 machines operated manually every day by 100 person with varying capacity and expertise and thereby the turn out would be varying according to the capacity and expertise of each person. He further contended that the authorities below have accepted that there might be variation of turn out of the work and wastage from 5 to 10%. That accepted percentage of waste of carbon di-oxide gas has not been given effect to by the authorities while calculating the outcome.

6. The learned special Government Pleader contended that the statistical survey has been conducted during the inspection and it has been accepted by the assessee that the actual consumption was more than the recorded consumption of carbon di-oxide. Hence that amounts to suppression. When a suppression was there, it is always open to the assessing authority to make a best judgment assessment. The assessing authority is the best judge. There may be certain variation and that variation cannot be considered for setting aside the order passed by the authority unless or otherwise it manifest that best judgment passed by the assessing officer is arbitrary. He further submitted that only after taking into consideration of the wastage and after giving allowance to the percentage of wastage the authorities below fixed the suppression at 30. Hence, there is absolutely no need for interference from this Court while exercising the power under Article 22 6 of the Constitution of India.

7. We heard the argument on either side and perused the material on record.

8. It is very well settled that this Court is not an appellate authority under the provisions of the TNGST, which is a special enactment. However this Court can exercise its jurisdiction under Article 22 6, when the Court finds on fact that orders are passed by inferior courts or tribunals is without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. This Court also interfere where exercise of jurisdiction is conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction under Article 226 is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned before this Court. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or insufficiency of evidence led on a point and inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. The above said limitation or the exercise of the jurisdiction under Article 226 of the Constitution of India is the law as laid down by the Constitution Bench of the Apex Court in SYED YAKOOB VS. K.S. RADHAKRISHNAN AND OTHERS reported in (1964) 5 SCR 64

9. Even on the facts, there is absolutely no materials made available before the authorities and the contention now raised was never been raised before the authorites except the argument made by Mr. Ramanathan as to the variation of wastages per person to person. The assessee had not even taken any steps to request the authorities to conduct another survey with another person so as to prove the wastage or variation to person to person. When that being the position, the mere argument cannot form basis for rendering a decision on it. In the absence of any materials, we can only appreciate the argument by the learned counsel rather we cannot interfere with the judgment of the authorities below for the sake of the argument advanced.

10. For the reasons above state, we declined to interfere with the order of the authorities below. Writ petition is dismissed. However, there will be no order as to costs. Consequently, W.M.P.No.5439 of 2001 is also dismissed.

Index:Yes

Internet:Yes

sl

To

1. The Registrar,

The Tamil Nadu Taxation

Special Tribunal

Rajaji Salai, Chennai - 1.

2. The Commercial Tax Officer,

Palayamkottai.




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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