2006 (10) TMI 384 - HC - VAT and Sales Tax

Validity of assessment order - Tamil Nadu General Sales Tax - Concessional rate of tax - declarations on form XVII for turnover - engaged in a process or manufacture - default on the part of purchasing dealer - Violation of principles of natural justice - HELD THAT - Section 3(3) levies concessional rate of three per cent on the sale of industrial raw materials to a manufacturing dealer for use in the manufacture of goods, except in the manufacture of alcohols and other goods mentioned therein. it is seen that concessional rate is subject to the production of Form XVII by the selling dealer obtained by him from the manufacturing dealer as prescribed in Rule 22. The concessional rate is not admissible for the sales of high speed diesel oil, light diesel oil and molasses to the manufacturer. It is not the case of the Revenue that the seller has produced a false bill, vouchers, declaration, certificate or other document with a view to support or makes any claim that the transaction is not liable to be taxed or liable to be taxed at a lower rate. We fail to appreciate as to how Section 10(3) of the Act would be applicable to the facts of the present case. In fact, the assessing officer has referred to Section 12(3)(b) of the Act while imposing penalty and there is no reference to Section 10(3) of the Act. In the circumstances, it is impossible to agree with the view of the learned single Judge that the law laid down by this Court in State of Tamil Nadu v. Madras Petro Chem Ltd. 1991 (7) TMI 343 - MADRAS HIGH COURT is no longer good law. It is essentially a rule of policy, convenience and discretion and never a rule of law. In Harbanslal Sahnia v. Indian Oil Corporation Ltd., 2002 (12) TMI 564 - SUPREME COURT , held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. Thus, the issue involved is covered by several judgments of this Court and the Supreme Court, and it has been consistently held that for the contravention of condition of Form XVII, tax and penalty could be imposed only against the purchasing dealer and not against the seller, as per Section 3(3) of the Act. Therefore, the impugned order of the assessing authority is clearly without jurisdiction. In the result, it is not possible to sustain the order passed by the learned single Judge and the same is hereby set aside. The writ petition as well as the writ appeal stands allowed with no order as to costs. Consequently, M.P. is closed.

Summary

Issues Involved:
1. Whether the selling dealer is liable for the wrong declaration made by the purchasing dealer under Section 3(3) of the Tamil Nadu General Sales Tax Act, 1959.
2. Applicability of Section 10(3) of the Act in the context of false declarations.
3. The rule of alternative remedy in challenging the assessment order.

Detailed Analysis:

Issue 1: Liability of the Selling Dealer for Wrong Declaration by Purchasing Dealer
The appellant, a dealer in machinery spares, reported a taxable turnover for the assessment year 2003-2004 and was assessed at a higher tax rate due to the assessing authority's rejection of the concessional rate of tax against Form XVII. The appellant argued that the tax and penalty should be imposed on the purchasing dealer for contravening the conditions of Form XVII, not on the selling dealer, citing Section 3(3) of the Act.

The court referenced several precedents, including the Division Bench decisions in *State of Tamil Nadu v. Madras Petro Chem Ltd.* and *State of Tamil Nadu v. Seema Udyog*, which held that the selling dealer is entitled to the concessional rate upon producing the required declaration in Form XVII. The court emphasized that the selling dealer's obligation ends with the production of the declaration, and any misuse of the goods by the purchasing dealer incurs penalties solely on the purchasing dealer.

Issue 2: Applicability of Section 10(3) of the Act
The learned single Judge had dismissed the writ petition, noting that Section 10(3), which imposes penalties for knowingly producing false documents, was not considered in previous judgments. However, the court clarified that Section 10(3) applies only when the dealer knowingly produces false documents. In this case, there was no allegation that the seller produced false documents. The court found that the assessing officer incorrectly imposed a penalty under Section 12(3)(b) without reference to Section 10(3).

Issue 3: Rule of Alternative Remedy
The Revenue argued that the appellant should have pursued the statutory appeal process rather than filing a writ petition. The court acknowledged that the rule of alternative remedy is a rule of discretion and not compulsion. Citing the Supreme Court's judgment in *State of H.P v. Gujarat Ambuja Cement Ltd.*, the court noted exceptions to this rule, such as when the impugned order is without jurisdiction or violates principles of natural justice. Given that the issue was covered by several judgments and the assessment order was without jurisdiction, the court deemed it appropriate to entertain the writ petition.

Conclusion:
The court concluded that the impugned order of the assessing authority was without jurisdiction. The selling dealer cannot be held liable for the wrong declaration made by the purchasing dealer under Section 3(3) of the Act. The court set aside the order of the learned single Judge, allowed the writ petition and the writ appeal, and closed the miscellaneous petition with no order as to costs.