9911796707
TMI Blog2007 (1) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... of such extension granted, the petitioner could not extract the entire quantity, but his prayer for further extension was rejected by the Government by its letter dated January 6, 1998. According to the petitioner, he had maintained proper books of account relating to the said business and submitted necessary returns with due payment of tax as required under the provisions of the Assam General Sales Tax Act, 1993. However, since the petitioner could not file necessary returns of turnover for the assessment year 1993-94, he was summarily assessed under section 17(5) of the Act by the Superintendent of Taxes, Dhubri, by his order dated March 29, 1995. Being aggrieved by such summary assessment, the petitioner preferred an appeal before the Deputy Commissioner of Taxes (Appeals), Guwahati vide appeal petition dated July 18, 1995. During the pendency of the appeal, respondent No. 4, i.e., the Superintendent of Taxes, Dhubri assessed the petitioner under section 17(4) of the Act for the assessment years 1994-95 and 1995-96 vide orders dated March 22, 1996 and June 3, 1996, respectively. According to the petitioner, he had produced all the books of account relating to his business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use as to why he should not be reassessed under section 18 of the Act enhancing the turnover up to Rs. 13,67,606 and Rs. 12,15,101 for the assessment years 1993-94 and 1994-95, respectively on the basis of the total bid money paid by the petitioner during those two years. By the notice, the petitioner was further directed to show cause as to why penalty should not be imposed under section 23(1)(g) of the Act for alleged concealment of turnover. In response to the said notice, the petitioner by his reply dated February 15, 1999 denied the concealment of turnover. During the course of hearing, he has also verbally challenged the legality of the purported action under section 18 of the Act for reopening of the assessment years 1993-94 and 1994-95. After such hearing of the matter, respondent No. 4 passed the order dated March 1, 1999 under section 18 of the Act levying tax and interest for the assessment years 1993-94 and 1994-95. In addition to the tax and interest, the amount of Rs. 5,000 for each of the aforesaid assessment years was also imposed as penalty under section 23(1)(g) of the Act and the notice of demands in respect of such amount was served upon the petitioner. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reopened and the impugned order has been passed under intimidatatory influence of the views of the Accountant General (Audit) without there being independent application of mind. It is the further plea of the petitioner that respondent No. 4 committed error in law in invoking section 18 of the Assam General Sales Tax Act, 1993. The respondents have filed their counter-affidavit justifying the impugned action. In paragraph 5 of the counter-affidavit, it has been stated that the turnovers disclosed by the returns submitted by the petitioner for the relevant periods compared to the bid money coupled with the amount paid for extension which stood at Rs. 32,64,510 reflected that the petitioner did not submit proper books of account relating to his business. According to the respondents, the original assessments cannot pose a bar against the subsequent reassessment based on new information of actually applied quantum of inputs during the relevant years. Referring to the reply furnished to the show cause notice dated September 25, 1999, the respondents in their counter-affidavit have stated that the petitioner did not furnish any explanation for the very wide gap between his inflow of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxes [1973] 31 STC 25 (Gauhati). (4) Commissioner of Sales Tax v. Bhagwan Industries (P.) Ltd. [1973] 31 STC 293 (SC). (5) State of Andhra Pradesh v. Ratna Sree Box Makers [1989] 75 STC 82 (AP). (6) Birla Cement Works v. State of Rajasthan [1994] 94 STC 422 (SC). (7) Lucknow Skin Co. v. State of U. P. [1998] 108 STC 569 (All). (8) Haryana Co-operative Sugar Mills Limited v. State of Haryana [1997] 107 STC 103 (P H). (9) Girdharlal Company v. State of Andhra Pradesh [1995] 97 STC 442 (AP). (10) Commissioner of Sales Tax v. Madhu Chemical Works [1988] 71 STC 421 (All). (11) Vinod Trading Co. v. State of Assam [2006] 144 STC 573 (Gauhati). Mr. Dubey, learned Standing Counsel, Finance, apart from arguing on merit of the case, also raised the plea of non-maintainability of the writ petition, there being alternative remedy by way of preferring the appeal against the impugned order. Although there is challenge to the appellate order dated August 14, 2000 by which the reassessment order dated March 1, 1999 was set aside, the petitioner is aggrieved by rejection of the sale price reflected in the petitioner's books of account. According to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king any grievance against the appellate order. Rather, the petitioner submitted to the jurisdiction of the assessing authority in terms of the said appellate order and now, being aggrieved by the impugned orders of assessment has also collaterally challenged the parent order, i.e., the appellate order on the basis of which the impugned orders of reassessment have been passed. I am of the considered opinion that the petitioner cannot make a challenge to the appellate order dated August 14, 2000 after having submitted to the follow up action initiated by the assessing authority in terms of the said appellate order, which is also only when the petitioner found that the impugned orders of reassessment are contrary to his expectation. He cannot challenge the appellate order dated August 14, 2000 collaterally while challenging the impugned orders of reassessment. He first took a chance for favourable consideration in terms of the appellate order dated August 14, 2000 and thereafter, has turned round the same when he found that the orders of reassessment are not favourable to him. There is no dispute that the impugned orders are appellable orders and thus, the petitioner has an altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs were issued with show cause notices as to why summary assessment as per the provisions of the Act would not be made on their failure to produce the books of account. In reply the petitioners informed the assessing authority that they would produce the books of account on receipt of the same from the registered dealers and requested for time. It was the case of the petitioners that they tried to collect the 'C' forms from the purchases and on failure to procure the same prayed for further time. On their failure to do so within the prescribed time, the notices of demand were served upon them. Being aggrieved they approached this court by filing the writ petitions without availing the alternative remedy available by way of appeal. Learned single judge upon discussions of the factual matrix and the laws applicable to the case including the decisions on which the parties placed reliance, held the writ petitions to be not maintainable and accordingly directions were issued to approach the appellate authority. It was submitted at the bar that against this decision of the learned single judge, the petitioners preferred writ appeal and the same has been dismissed affirming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial recognition that the High Court should direct the party to avail himself of alternative remedies one or the other before he resorts to constitutional remedy. As observed in the case of Transmission Corporation of A.P. v. Ch. Prabhakar. As reported in [2004] 5 SCC 551, in proceedings under article 226, the High Court cannot sit as a court of appeal to re-appreciate the evidence for itself or to correct an error of fact, however apparent it might be on the ground that the evidence on which it was based was not satisfactory or sufficient. The apex court further observed that the proceedings under article 226 are not a substitute for an appeal. The petitioner will get all the opportunity to explain their case before the appellate authority. On their failure before the said authority they will have another channel open by way of preferring further appeal to the appropriate authority. Thereafter also they will have other remedies open. Merely because the petitioner/appellant feel that they have a good case on merit, they cannot bypass the statutory alternative remedy by way of invoking the writ jurisdiction. In fact, they had invoked the jurisdiction of the statutory auth ..... 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