TaxTMI 
TaxTMI 
2006 (1) TMI 580
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....s in two wheeler automobiles. It is an authorised dealer of M/s. Hero Honda Motors Limited, New Delhi, for districts of Krishna, Guntur and Prakasham, having branches at different places and a registered dealer under the Act and the Central Sales Tax Act, 1956. All the three suits are filed, (1) seeking a mandatory injunction to direct the defendants, i.e., officers of the Commercial Tax Department functioning at various levels to return all the account books, records, files and floppies (for brief "documents") which were allegedly taken away by the defendants from the possession of the plaintiffs on different dates; and (2) for permanent injunction restraining the defendants from taking any action against the plaintiff or issuing any notice like show cause, etc., or from passing any orders till the account books, records and files, floppies of the plaintiff, which were taken away by them are duly returned to the plaintiff. It is alleged in O. S. No. 1069 of 2005 that the documents were seized during the course of inspection of the office of the plaintiff on March 14, 2005, while in O.S. Nos. 1074 and 1079 of 2005 the allegation is that they were seized during the cour....
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.... information of sub-dealers' appointment, etc. The plaintiff approached the court with false allegations and obtained interim injunction. The suit is not maintainable in view of the express embargo placed by the provisions of section 36 of the Act on the Civil Courts to entertain suits filed against the proceedings initiated under the provisions of the Act and, therefore, the plaints may be rejected. In the counters filed by the plaintiff it is asserted that the bar of jurisdiction alleged by the defendants is not applicable to the present suits. The learned I-Additional Junior Civil Judge, held that his court has jurisdiction to entertain the suits and consequently dismissed the three I.As. Aggrieved by the same, the three civil revision petitions are filed. The point that arises for consideration is: Whether the civil court has no jurisdiction to entertain the three suits in view of the provisions of section 36 of the Act? Point: The relief claimed in the suit is of two-fold, namely, (1) mandatory injunction directing the defendants to return all the account books, records and files, floppies which were allegedly taken away by the defendants and (2) a permanent injunction....
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....shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular ....
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....ect of the matters like summoning of the witnesses, examining any person on oath, production of documents, etc. Thus, the assessing, appellate and revising authorities specified in the Act will be exercising civil court powers in certain respects and they are quasi-judicial authorities. The Appellate Tribunal is conferred with same powers as are vested in a civil court under the Code of Civil Procedure including the power to punish for contempt. Thus, the Act itself has created special rights or liabilities and provided for the determination of the right or liability and all questions about the rights and liabilities under the Act shall be determined by the Tribunals constituted under the Act only. A special bar is created under the provisions of section 36 of the Act prohibiting the civil courts from entertaining any suit seeking setting aside, modification or questioning the validity of any assessment, order or decision made or passed by any officer or authority under the Act or the Rules or in respect of any other matter falling within its or his scope. The section has a long and wide sweep. It takes within its fold not only the assessments, orders or decisions made or passed, ....
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....ank of the Assistant Commercial Tax Officer authorised by the State in that behalf, to order production of accounts and powers of entry, inspection, etc. Section 28(3) of the Act, which is relevant for our purpose, runs as follows: "If any such officer has reason to suspect that any dealer is attempting to evade the payment of any tax or other amount due from him under this Act, he may, for reasons to be recorded in writing, seize such accounts, registers or other documents of the dealers as he may consider necessary and shall give the dealer a receipt for the same. The accounts, registers and documents so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceeding under this Act: Provided that such accounts, registers and documents shall not be retained for more than thirty days at a time except with the permission of the next higher authority." Rule 49 of the Rules made under the Act runs as under: 49.. (1) Where any officer duly authorised under section 28 of the Act conducts a search of any office, shop, shop-cum-residence, residential accommodation, godown, vessel, vehicle, or any other pl....
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....as per plaintiff. If the allegation that the commercial tax authorities have taken away the account books, records and files, floppies, etc., without following the procedure is believed, the alleged seizure would automatically become illegal and fall outside the scope of the provisions of the Act and Rules made thereunder. It must be deemed that they were seized highhandedly. When the allegation of that sort is made, it is purely a question of fact. When there is flagrant violation of the procedure prescribed under the Act and the Rules, the civil court would certainly have jurisdiction as laid down in N. Ramaswami Iyer and Sons [1966] 18 STC 1 (SC); AIR 1966 SC 1738 and Ram Swarup's case AIR 1966 SC 893. The fact that the Act provides for appeal and there is a further provision of revision and appeal to Special Tribunal would not stand in our way in coming to the conclusion that the suit is maintainable for the reason that the plaintiff alleges that relevant provisions of the statute and due procedure prescribed under law are not followed in taking away the books, etc., which allegation if found to be true would render the alleged seizure illegal. At this juncture, the lear....
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....een passed under certain circumstances, as referred to earlier. In fact, if the assessing authorities provided enough time as provided under the Act and the Rules, the dispute could be resolved before the assessing authority himself, if not, before the other hierarchical authorities provided under the statute. Those authorities are competent to consider the factual aspects. Therefore, the same would avoid driving the parties to any other fora for seeking relief. In our opinion the provisions of section 36 were incorporated to avoid unnecessary and lengthy litigation. If once the dealers are permitted to go out of the said bar to institute proceedings on some pretext or the other, the very intention of the Legislature would be frustrated. Further, it is not for the courts to show any other forum for adjudication, which is not provided in the statute. Hence, we disapprove the same." The observation appears to be in the nature of an obiter. Further, the question related to collection of tax by coercion, undue influence and threat of arrest and imprisonment, as per the allegations. The payment of tax was a fait accompli. If the plea of payment by threat, coercion or undue influen....
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....scope of the officers or authority. The bar of jurisdiction of civil courts cannot be readily presumed. The general rule of law is that when a legal right or infringement thereof is alleged, the ordinary civil courts would have jurisdiction unless there is an express or implied bar to the entertainment of the suit in that regard, in view of the provisions in section 9 of the C.P.C. If an express provision in a statute is cited as constituting the bar for entertainment of the suit in a civil court, it is necessary to examine whether all the requirements for application of the provision are satisfied." The Supreme Court in Commissioner of Income-tax v. Parmeshwari Devi Sultania [1998] 230 ITR 745, where articles were seized on search and ordered to be retained under the provisions of the Income-tax Act, 1961 and where a partition suit was filed in respect of the articles seized without filing objections before the Commissioner with reference to section 293 of the Income-tax Act, 1961, which bars filing of a suit in any civil court seeking setting aside or modification of any proceeding taken or order made under that Act, held: "We have seen above that the scope of section....
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....ody can be judge of his own cause. Natural justice embodies a wider principle of fairness in decision making. Now, we will take up the second prayer, namely, interdicting the commercial tax authorities from taking any action against the plaintiff or issuing any notice like show cause, etc., or from passing any orders till the account books, records and files, floppies, etc., which are allegedly taken away by the defendants are returned to the plaintiff. The learned Senior Counsel, Sri Prakash Reddy, contends that this relief flows from the first relief and is thereby consequential in nature. While dealing with the maintainability of the first prayer, we made the judgment on the ground that the allegation that the commercial tax authorities taking away the account books, records and files, floppies, etc., is a question of fact. However, it may be apt to point out certain things here. An omnibus allegation is made in the plaint that all the books, records, files and floppies were taken away by the defendants without issuing any receipt or acknowledgement, as if nothing is left out unseized. The plaintiff has its own establishment and an accountant who is authorised to sign the re....
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....rated and the provisions of section 36 of the Act will be rendered nugatory. Now coming to the plea that the second prayer is consequential in nature, we must opine that what the plaintiff could not achieve directly it is seeking to achieve indirectly under the garb of consequential prayer. He wants to stop the quasi-judicial authorities from initiating proceedings or passing orders in exercise of the statutory powers vested in them and that way stall the proceedings to be initiated and orders to be passed, for years or decades together. It is the so-called consequential relief that does all the mischief. The defendants alleged that the plaintiff evaded a startling and whopping sum of Rs. 6,70,54,574 of tax for the three years, 2002-03, 2003-04 and 2004-05. The said consequential relief falls within the realm of the second limb of section 36 of the Act namely "or in respect of any other matter falling within its or his scope". The relief, if granted, would prevent the authorities from reopening the assessment and passing orders thereon. In other words, it restrains the authorities from performing statutory functions, such a relief in our opinion cannot be granted as a c....