9911796707
TMI Blog1990 (4) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... of the drilling units employed by the petitioner-company for the purpose of exploration of oil wells. Section 5-E provides for levy of tax on the transfer of right to use the goods for any purpose whatsoever whether or not for a specified period, to any lessee or licensee for cash, deferred payment or other valuable consideration. This section was introduced into the Act with effect from July 1, 1985, as a sequel to the Constitution (Forty-sixth) Amendment Act. The respondent-Commercial Tax Officer held on a consideration of the terms of the contract between the petitioner and the ONGC that the drilling rigs were hired by ONGC for the purpose of exploration of oil wells and the rigs are practically at the disposal of the ONGC for their us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay was granted on condition of furnishing bank guarantee for the disputed amount of tax. During the pendency of the writ petitions, the petitioner preferred appeals to the Appellate Deputy Commissioner, Kakinada. The appellate authority by his order dated February 22, 1990, dismissed the appeals after hearing the petitioner and confirmed the assessments made by the Commercial Tax Officer. In view of this development, the petitioner has filed applications for amendment of the prayer in the writ petitions by seeking to quash the order of the appellate authority as well. It may be noticed that the petitioner has a right of further appeal to the Sales Tax Appellate Tribunal against the orders of the Appellate Deputy Commissioner, under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ader supported the conclusion of the assessing and appellate authorities by referring to the clauses in the agreement and also submitted that an effective alternative remedy being available to the petitioner under the statute, this Court ought not to adjudicate upon the factual and legal questions in the writ proceedings under article 226 of the Constitution. He relied upon the judgment of the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315; AIR 1983 SC 603 and Assistant Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172 (SC); AIR 1985 SC 330. In Titaghur Paper Mills' case [1983] 53 STC 315 (SC); AIR 1983 SC 603, which is arising under the Orissa Sales Tax Act, the Supreme Court held thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of. The next appeal is to the Sales Tax Appellate Tribunal presided over by a District Judge. There can be no apprehension whatsoever-in fact no such apprehension has been expressed before us that there would be no independent adjudication from the Appellate Tribunal. Though the question of constitutional validity of section 5-E has been raised in the writ petitions, the said question has not been canvassed before us. The validity or otherwise of the assessmentcasting heavy tax liability on the petitioner depends on various factual aspects. The construction of the clauses in the agreement, the scrutiny of accounts and contemporaneous documents from the stage of the import of equipment to the stage of billing have to be looked into. Incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons against the assessment orders without availing of the appellate remedies. In H.B. Gandhi, Excise and Taxation Officercum-Assessing Authority v. Gopi Nath Sons [1990] 77 STC 1 (SC), a dealer challenged before the High Court of Punjab and Haryana under article 226, the assessments made in respect of the turnover of articles of food supplied to the customers in the restaurant. The appellate authority declined to exercise the discretion vested in him for granting stay pending appeal. At that stage the petitioner moved the High Court under article 226 of the Constitution, and contended that the assessment was opposed to the judgment of the Supreme Court in Northern India Caterers (India) Ltd.'s case [1980] 45 STC 212 and that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was not open to the High Court to reappreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities...... ....... Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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