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TMI Blog2014 (11) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Respondent : Sri S. Krishna Murthy, Learned Counsel ORDER (Per Honble Sri Justice Ramesh Ranganathan) W.P. No.28499, 28582 and 28542 of 2013 are filed to set aside the assessment orders passed by the first respondent dated 05.11.2012, for the assessment years 2011-12, 2010-11 and 2009- 10, along with the appeal rejection orders passed by the 4th respondent dated 14.08.2013, as without authorisation from the 3rd respondent; and contrary to the law laid down in Balaji Flour Mills, Chittoor v. Commercial Tax Officer II, Chittoor . The petitioner, a private limited company, is engaged in the business of buying and selling motor vehicles. They are dealers registered both under the APVAT Act, 2005 and the CST Act, 1956. The 1st respondent, by proceedings dated 05.11.2012, passed assessment orders under the CST Act for the years 2009-10, 2010- 11 and 2011-12 rejecting the C declaration forms submitted by the petitioner on the ground that, on cross verification, the said C declaration forms were found to be bogus. The entire turnover of the petitioner was assessed to tax at 12.5%. The petitioner filed W.P. Nos.9168, 9175 and 9176 of 2013 questioning the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of tax; on receipt of the assessment orders the petitioner submitted a copy of the letter dated 19.07.2012, purported to have been issued by the Deputy Commissioner (CT), Durg Division Chattisgarh State, that the C declaration forms produced by the petitioner were correct; on further verification, the Deputy Commissioner (CT), Durg Division, Chattisgarh State, by her letter dated 27.02.2013, had informed that the letter dated 19.07.2012, submitted by the petitioner to the respondents herein, was not issued by her, and it was a forged and fabricated document; the petitioner had not only filed fake and bogus C forms, but had also produced forged and fabricated letters in the name of the Deputy Commissioner (CT), Durg Division, Chattisgarh State to support their false claim; the petitioner, having failed in all their attempts to defraud the revenue, had filed W.P. Nos.9168, 9175 and 9176 of 2013 challenging the assessment orders on the ground that their objections dated 22.10.2012 were not considered; the first respondent had filed his counter-affidavit therein stating that the round seal of their office, acknowledging receipt of the said objections on 22.10.2012, was fabricated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproach different forums for the same relief; after having failed, in the statutory remedy of appeal, the petitioner is not entitled to maintain these Writ Petitions as they are hit by the doctrine of election; the Writ Petitions are also liable to be dismissed on the ground that the petitioner had not approached this Court with clean hands; they had, in the earlier instance, played fraud on this Court filing forged documents, and making false statements on oath; on their being exposed, and in order to escape the consequences of perjury and avoid criminal prosecution, they had withdrawn the Writ Petitions; having played fraud on the Court they cannot be permitted to maintain the present Writ Petitions; the allegation that the 1st respondent had passed orders, without obtaining authorisation from the 3rd respondent, is not tenable; there is no rule or provision in the CST Act, under which the subject assessment orders were passed, to obtain authorisation in terms of Rule 59 of the A.P. VAT Rules; in terms of Section 9(2) of the CST Act, read with Rules 2(c) and 14(A)(6) of the CST (AP) Rules, Section 2(4) and 3A of the A.P. VAT Act and Rule 59(2) of the A.P. VAT Rules, no authorisat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Petitions; they withdrew the Writ Petitions with liberty to prefer the statutory remedy of appeal; in the present Writ Petitions the order of the appellate authority, in rejecting their appeal on the ground of limitation, is not seriously under challenge; as they had not obtained liberty to file Writ Petitions afresh, it is not open to the petitioner to file the present Writ Petitions questioning the very same assessment orders dated 05.11.2012; and the Writ Petitions, as filed, are an abuse of process of Court and are liable to be dismissed with exemplary costs. Learned Special Standing Counsel would rely on Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji 2008(1) SCC 494 ; T. Prem Sagar v. M/s. Standard Vacuum Oil Company AIR 1978 SC 8, Madras ; Ratnagiri Gas and Power Private Limited v. RDS Projects Limited AIR 1965 SC 111 ; and Mohanlal v. State of Rajasthan. The very same assessment orders, which are under challenge in the present Writ Petitions, were subjected to challenge earlier in W.P. No. 9168, 9175 and 9176 of 2013. Counter- affidavits were filed therein by the 1st respondent herein (the 4th respondent in W.P. No. 9168, 9175 and 9176 of 2013). In i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the 1st respondent, were without jurisdiction. Very often after a writ petition is heard for some time, and when the petitioner or his counsel find that the Court is not likely to pass an order admitting the petition, a request is made to permit the petitioner to withdraw the Writ Petition without seeking permission to institute a fresh Writ Petition. A Court, which is unwilling to admit the petition, would not, ordinarily, grant liberty to file a fresh petition while it may agree to permit withdrawal of the petition. The petitioner may, in a case involving enforcement of his fundamental rights, file a petition before the Supreme Court under Article 32 of the Constitution of India because, in such a case, there has been no decision on merits by the High Court. The principle, underlying rule 1 of Order XXIII C.P.C. should be extended, in the interests of administration of justice, to cases of withdrawal of a Writ Petition also, not on the ground of res judicata but on the ground of public policy. It would discourage a litigant from indulging in bench-hunting tactics. There is no justifiable reason to permit a petitioner to invoke the extraordinary jurisdiction of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter with the workers' union, bide its time till 13.4.2007, and then claim the benefit of deemed grant of permission for closure; instead of doing so, they decided to bonafide explore the possibility of an overall settlement with the remaining employees; since that could not have been done within the remaining four days, they withdrew their application under Section 25-O(1) of the Industrial Disputes Act so that an attempt for settlement could be made; its conduct, in seeking withdrawal of its closure application, was bonafide; their effort for an amicable settlement failed; and, hence, they had filed a fresh application, under Section 25- O(1) of the Industrial Disputes Act, before the Commissioner of Labour, Mumbai. It is in this context that the Supreme Court held:- We have referred to the aforesaid decisions and the principles laid down therein, because often decisions are cited for a proposition without reading the entire decision and the reasoning contained therein. In our opinion, the decision of this Court in Sarguja Transport case (supra) cannot be treated as a Euclid's formula No doubt, Order XXIII Rule 1(4) CPC states that where the plaintiff withdraws a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d resolution and the rejection of their bid. It is in this context that the Supreme Court observed:- There is thus almost complete identity of the subject matter and the issues raised in the two writ petitions and the grounds urged in support of the same, and (b) The challenge to the Board resolution dated 4th October, 2010 and communication dated 6th October, 2010 was withdrawn in toto, with liberty reserved to RDS to file a fresh petition for redress only in case the fresh tender to be floated by the appellant for allotment of the works in any manner sought to exclude RDS from participation in the same. This necessarily implies that if RDS was allowed to participate in the fresh tender process it would have had no quarrel with the annulment of the entire tender process based on the first tender notice. Conversely if the fresh tender notice sought to disqualify RDS from bidding for the works it could seek redress against such exclusion. Liberty granted by the High Court to file a fresh petition was in our considered opinion limited to any such fresh challenge being laid by RDS to its exclusion in terms of any fresh tender notice. The order passed by the High Court did not perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was, however, not open to them to file Writ Petitions afresh questioning the very same assessment orders dated 05.11.2012 which were under challenge in the earlier Writ Petitions, as they were not granted liberty, when the earlier Writ petitions were dismissed as withdrawn, to file Writ Petitions afresh questioning the validity of the assessment orders dated 05.11.2012. II. DOES THEN FIRST RESPONDENT LACK JURISDICTION, UNDER THE CENTRAL SALES TAX ACT, 1956, TO PASS THE IMPUGNED ORDERS OF ASSESSMENT DATED 05.11.2012? Section 2(4) of the A.P. VAT Act defines assessing authority to mean any officer of the Commercial Tax Department, authorised by the Commissioner, or as may be prescribed, to make any assessment in such area or areas or the whole of the State of Andhra Pradesh. Section 3-A empowers the State Government to appoint as many Commercial Tax Officers, as they think fit, for the purpose of performing the functions respectively conferred on them by or under the Act; and such Officers shall perform the said functions within such area or areas or the whole of the State of Andhra Pradesh as the Government or any authority or officer empowered by them in this behalf may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including interest or penalty, payable by a dealer under the Central Sales Tax Act as if the tax or interest or penalty by such a dealer under the Act is a tax or interest or penalty payable under the general sales tax law of the State. Rule 2[c] of the Central Sales Tax (Andhra Pradesh) Rules, 1957 defines appropriate assessing authority to mean (i) in the case of a dealer who is liable to pay tax under the general sales tax law of the State, the assessing authority under the said law; (ii) in the case of any other dealer, the assessing authority under the general sales tax law of the State who would have jurisdiction to assess the dealer if he were carrying on business inside the State. Rule 14- A(1)(a) stipulates that, every dealer registered under Section 7 of the Act and every dealer liable to pay tax under the Act, shall submit a return in Form CST VI (in duplicate) showing the total and net turnover of his transactions, including those in the course of inter-State trade or commerce, dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the Commercial Tax Officer shall be the prescribed authority only if he has been authorised by the Deputy Commissioner (CT) to make assessment. The first respondent falls within the definition of assessing authority under Section 2(4) of the AP VAT Act and Rule 2[c] of the Central Sales Tax (A.P.) Rules. Unlike an assessment under the A.P.VAT Act, which can be made only by the prescribed authority, the power to make assessment under the Central Sales Tax Act and the Central Sales Tax (Andhra Pradesh) Rules has been conferred on the assessing authority. The judgment in Sri Balaji Flour Mills1, which relates to the exercise of jurisdiction to make an assessment under the AP VAT Act, would not automatically apply to an assessment made under the Central Sales Tax Act. III. THE IMPUGNED ASSESSMENT ORDERS DATED 05.11.2012 DO NOT BEAR THE BRAND OF INVALIDITY ON THEIR FOREHEAD : The assessment orders, passed by the 1st respondent herein on 05.11.2012, do not bear the brand of invalidity on their forehead. An order, even if not made in good faith, is still capable of legal consequences. Unless the necessary proceedings are taken at law to establish the cause of invalidity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter-affidavit and its enclosures did the petitioner choose to withdraw W.P. No. 9168, 9175 and 9176 of 2013. These Writ Petitions were filed by the petitioner contending that the assessment orders dated 05.11.2012 were passed in violation of principles of natural justice as their objections, in their letter dated 22.10.2012, had not been considered before the said assessment orders were passed. Along with the counter-affidavit in W.P. No.9175 of 2013, the 1st respondent submitted documentary evidence to show that 22.10.2012 was a public holiday in view of Durgastami; all public offices were closed on that day; and the petitioner could not have submitted the representation to them on 22.10.2012. The first respondent also submitted copies of their office seal to show that the seal, allegedly acknowledging receipt of the petitioners objection on 22.10.2012, did not belong to their office; there was a distinction in the seals on the letters of objection dated 22.10.2012 submitted in respect of the three assessments; while two of these seals, affixed in acknowledgment of receipt of the letter dated 22.10.2012, were oval in shape, the other was a round seal; a close examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to MM Sales Corporation with effect from 01.05.2014 as they were a registered dealer for trading of goods; and the C Forms be accepted. Pursuant thereto the respondents herein addressed letter dated 26.02.2013 to the Deputy Commissioner (CT), Durg Chattisgarh State for cross verification of the C Forms. The Deputy Commissioner (CT), Durg, Chattisgarh State, by letter dated 27.02.2013, informed the respondents herein that M/s. M.M. Sales Corporation was a registered dealer under the VAT Act; they did not hold any Central Sales Tax registration number; the registration number of the dealer had been cancelled on 24.06.2010; the letter dated 19.07.2012 had not been issued by their office; it was not signed by her; and it appeared, prima facie, to be a forged document. A copy of the counter-affidavit, wherein the aforesaid allegations are made and to which the aforesaid documents were enclosed, was handed over to the Counsel for the petitioner, and this fact is noted by this Court in its order in W.P. No.9175 of 2013 dated 01.04.2013. It is evident, therefore, that the petitioner had sought permission to withdraw the Writ Petition with liberty to pursue the statutory remedy of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al process is not abused and its order does not become an instrument or aid to overreach the adversary. (M.V. Venkataramana Bhat v. Returning Officer and Tahsildar ). Where the controversy stood concluded in the earlier round of litigation, a second writ petition should not be entertained by the High Court. A second writ petition for the same relief is an abuse of the process of the Court. (State of T.N. v. Amala Annai Higher Secondary School ). When a person invokes the equitable and extraordinary jurisdiction of the High Court, under Articles 226/227 of the Constitution, he must approach the court not only with clean hands but also with a clean mind, a clean heart and a clean objective. The judicial process should never become an instrument of oppression or abuse or a means to subvert justice. He, who seeks equity, must do equity. The legal maxim Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, means that it is the law of nature that one should not be enriched by the loss or injury to another. (Manohar Lal19; Ramjas Foundation v. Union of India , K.R. Srinivas v. R.M. Premchand ; Noorduddin v. Dr. K.L. Anand ). In Mohanlal6, the Rajast ..... X X X X Extracts X X X X X X X X Extracts X X X X
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