COMMON PRAYER: Writ Petitions are filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the first respondent dated 30.11.2009 served on the petitioners on 19.12.2009 in his order Nos.CST 523115/1995-96, CST 523115/1996-97, CST 523115/1997-98 and CST 523115/1998-99, respectively, and to quash the same and to direct the second respondent to proceed against the third respondent who issued the C- Form declaration.
Since the issue raised in these batch of cases are one and the same and the prayer sought for also are similar to each other, all these Writ Petitions are decided by this common order.
2. The facts leading to W.P.(MD)No.707 of 2010 are taken up for the purpose of deciding this issue. The petitioner in this Writ Petition being a Partnership Firm, is a dealer in Paper and Board, and is an assessee on the file of the first respondent under the Central Sales Tax Act. The first respondent had passed assessment order for the assessment year 1995-1996. An appeal was filed before the second respondent. The second respondent, by order dated 22.04.2009, after having set aside the assessment order, had remanded the matter back to the first respondent for re-consideration and re- assessment. While remanding the matter back to the first respondent for re- consideration, the second respondent has given specific directions to the first respondent to re-assess the issue by ascertaining the following, as indicated in the said order, which is re-produced hereunder:
"After hearing rival contentions and also perusal of the assessment file and other records revealed that the assessing authority ought to have verified all the purchases as to whether the value of C form declaration issued to the appellants/seller correctly tallied with that of the counterfoil available with the purchasers who has paid tax on his final product's sale value on the value of goods sold by the appellants.
Similarly, the C forms which were filed by the appellants before the assessing authority were obtained from the registered dealers and they were bear the seal of the concerned assessing authority. While the fact was so, the assessing authority has not taken any steps for verification of the issue register of the Revenue. But, he has simply stating that it is not necessary and there is no question of verification is need and the C forms are being issued throughout India. The verification of C form issue register is to be done in the nearby assessment circle, i.e. Sattur, Sivakasi and Srivilliputhur. But, the assessing authority had not done so. This shows that the assessing authority has not at all taken any steps for verification of C form issue register and simply saying that it is not necessary."
3. Pursuant to the said order of remand, the first respondent, being the assessing authority, instead of undertaking the re-assessment, by verifying the C Form as well as purchases as to whether the value of C Form declaration issued to the appellants/seller correctly tallied with that of the counterfoil available with the purchasers, who has paid tax, has simply proceed to pass the present impugned order dated 30.11.2009.
4. In the said impugned order, the first respondent has given the following reasons for passing the impugned order which reads thus:
"Further, the Appellate Deputy Commissioner (CT), Virudhunagar has also set aside the levy of penalty of Rs.801074.00 stating that the turnover was very much available in the books of accounts and the revision of assessment is only a re-assessment of the turnover, which was originally granted exemption and will fullness is not established."
Therefore, challenging the said impugned order passed by the first respondent, the present Writ Petition has been filed. The petitioner has also filed other Writ Petition in W.P.(MD)Nos.708, 709 and 710 of 2010 for the assessment year 1996-1997, 1997-1998, 1998-1999 respectively, where also similar orders were passed by the Assessing Authority without conducting the assessment, as directed by the second respondent-appellate authority as stated above.
5. Mr.A.S.Mujibur Rahman, learned counsel appearing for the petitioners would contend that the appellate authority, viz., the second respondent, after having considered various issues raised in the appeals filed by the petitioners, has, in fact, framed number of questions to be answered and after having considered each of the question framed by the appellate authority, ultimate conclusion was also given, wherein the said directions also had been given by the appellate authority, directing the Assessing Authority, viz., the first respondent to re-assess the entire issue in the manner indicated in the order of remand itself. When that being so, without conducting re-assessment, as has been indicated or directed by the appellate authority, the first respondent has passed the cryptic impugned orders, wherein he has simply stated that the Appellate Deputy Commissioner had given an opportunity to the dealers by applying of return of C Forms for ratification within a stipulated period and the dealers have neither applied for return of 'C' Forms nor filed any fresh or rectified 'C' Forms so far. Therefore, he had proceeded with passing the impugned orders of re- assessment. The way in which the impugned orders were passed is totally against the mandatory directions given by the appellate authority in the order of remand, which have not been followed by the first respondent. Therefore, for that ground alone, the impugned orders are liable to be interfered with.
6. The learned counsel for the petitioners would rely upon a judgment of this Court made in a batch of cases in W.P.(MD)Nos.2807 of 2006, etc., batch, by order dated 17.09.2009 in the matter of Tvl.Uma Paper Mart vs. Commercial Tax Officer-I (FAC), Sivakasi, Virudhunagar District and another. In the said judgment, the learned Judge, after having considered the facts of the said cases and also after having considered the earlier judgment of this Court made in W.P.(MD)Nos.809 to 816 of 2006, dated 12.07.2007, was pleased to allow the said batch of Writ Petitions. In view of the said decision of this Court, where a number of Writ Petitions have been allowed, these Writ Petitions with the similar facts and circumstances also covered by the said decision of this Court. Therefore, the learned counsel for the petitioners would contend that similar orders can be passed in these batch of cases also and he wants these Writ Petitions to be allowed.
7. Per contra, the learned Additional Government Pleader appearing for the first and second respondents would contend that no doubt there was a direction given by the appellate authority, whereby, as has been referred to above, a specific direction was given to the Assessing Authority to re-assess the issue in a particular manner by verifying each of the transaction along with the counterfoils and also to verify the veracity of the 'C' Forms submitted by the petitioners. Without having resorted to the said course of action, as has been directed by the appellate authority, since the first respondent has passed the impugned orders, it may not be justifiable for completing the assessment. However, the learned Additional Government Pleader appearing for the first and second respondents would contend that non- consideration of the first respondent in doing the re-assessment exercise would not ipso facto make the petitioners entitled to claim the benefit of setting aside the order and escape from the clutches of taxation. The learned Additional Government Pleader would further contend that in the said batch of cases, orders were passed on 17.09.2009. The issue was that the 'C' Forms said to have been given by the officials concerned of the Department were forged one. Therefore, since the Department officials themselves issued forged 'C' Forms, this Court had come to the rescue of the petitioners and thereby, setting aside the orders of re-assessment and directed the Department to take action against the erring officials. However, the facts are slightly different in the present case, where the Assessing Officer has not followed the mandatory directions issued by the appellate authority and, therefore, once the matter is remanded back for re-consideration or re- assessment, certainly, the Assessing Authority now would be ready and willing to make re-assessment strictly in accordance with the directions issued by the appellate authority in the order referred to above.
8. This Court had considered the rival submissions made by the learned respective counsel appearing for the parties and also the judgments referred to by them.
9. As rightly contended by the learned counsel appearing for the petitioners, re-assessment has not been done by the first respondent before passing the impugned orders in accordance with the directions issued by the appellate authority. This position cannot be controverted by the learned Additional Government Pleader appearing for the respondents also. Therefore, this Court is of the view that the impugned orders shall not stand in the legal scrutiny as if an authority is directed to do a particular thing in a particular manner, the same has to be done only in that manner not otherwise. Here, in the case in hand, though a categorical direction was given by the appellate authority, the same has not been followed by the Assessing Authority and, therefore, the impugned orders followed by the non- consideration on the part of the first respondent would not stand in the legal scrutiny and, therefore, this Court has no hesitation to quash the said impugned orders. Accordingly, the same are quashed.
10. However, as has been pointed out by the learned Additional Government Pleader appearing for the first and second respondents, the direction given by the appellate authority can very well be followed by the present Assessing Authority, if the matter is remanded back. Therefore, this Court is of the view that the matter can be remanded back to the Assessing Authority to re-assess the entire issue strictly in accordance with the directions issued by the appellate authority in the order passed on 22.04.2009 and after affording a reasonable opportunity for each of the petitioner for being heard, re-assessment exercise shall be completed, within a period of three months from the date of receipt of a copy of this order. Accordingly, final orders can also be passed by the Assessing Authority after meeting out every point being raised by the petitioner on their behalf.
11. With these directions, the Writ Petitions are allowed in part. No costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Assistant Commissioner (CT )-IV (FAC), Sivakasi, Virudhunagar District.
2.The Appellate Deputy Commissioner (CT) FAC, Virudhunagar..