TaxTMI 
TaxTMI 
2014 (11) TMI 839
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssment 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 orders dated 05.11.2012 passed for the years 2009-10 to 2011-12. All the three writ petitions were dismissed as withdrawn, by order dated 01.04.2013, granting the petitioner liberty to pursue the statutory remedy of appeal. The petitioner preferred appeals to the 4th respondent against the assessment orders dated 05.11.2012. The 4th respondent, by order dated 14.08.2013, rejected the appeals preferred by the petitioner, at the admission stage, holding that the appeals were filed beyond the extended period of limitation of sixty days; and there was no power vested in him to condone the delay beyond the extended period of limitation. The petitioner contends that, subsequently on legal advice, they came to understand that the assessment orders dated 05.11.2012, passed by the 1st respondent, was with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g 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; 22.10.2012 was a public holiday in view of Durgastami and, as such, their office could not have acknowledged receipt of the objections on that day; after receiving the counter-affidavit, the petitioners Counsel had sought permission of this Court to withdraw the Writ Petition to avail the statutory remedy of appeal; this Court, after recording that a counter-affidavit was filed and served on the petitioner, had permitted the petitioner to withdraw the Writ Petition granting them liberty to avail the statutory remedy of appeal; criminal complaints have been lodged, against the petitioner and their officers, for the offences of forgery and fabrication of various documents; Crime No.197 of 2013 was registered by the Central Crime Station, Hyderabad, and the directors of the petitioner were arrested; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 authorisation is required/necessary for finalisation of assessments under the CST Act; the Commissioner of Commercial Taxes had also issued a circular dated 03.01.2013 instructing all assessing authorities in the State to complete assessment within the prescribed time limit; in terms of the said circular the 1st respondent, being the territorial assessing officer, is empowered to finalise the assessment under the CST Act; and the Writ Petitions are devoid of merits. Sri E. Manohar, Learned Senior Counsel appearing on behalf of the petitioner, would submit that, after this Court had granted liberty to them to withdraw the Writ Petitions to prefer appeals, the petitioner had invoked the jurisdiction of the Appellate Deputy Commissioner who, by order dated 04.08.2013, had refused to entertain the appeals ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 its order, in W.P. No.9175 of 2013 dated 01.04.2013, this Court noted that a counter-affidavit had been filed and had been served on the petitioner; however, when the matter was taken up for consideration, Learned Counsel for the petitioner sought permission to withdraw the Writ Petition with liberty to pursue the statutory remedy of appeal; and accordingly, granting leave and liberty, the Writ Petition was dismissed as withdrawn and the Registry was directed to return the original demand notice to the Counsel for the petitioner. The petitioner preferred an appeal, thereafter, to the 4th respondent herein i.e., the Appellate Deputy Commissioner who, by order dated 14.08.2013, rejected the appeal as barred by limitation. The Appellate Authority relied on a judgment of the Div....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cision 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 Court under Article 226 of the Constitution once again. While withdrawal of a Writ Petition, filed in a High Court, without permission to file a fresh Writ Petition, may not bar other remedies like a Suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. A fresh Writ Petition is not maintainable before the High Court in respect of the same subject-matter where the earlier Writ Petition has been withdrawn without permission to file a fresh petition. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 suit without permission of the court, he is precluded from instituting any fresh suit in respect of the same subject matter. However, in our opinion, this provision will apply only to suits. An application under Section 25-O(1) is not a suit, and hence, the said provision will not apply to such an application (emphasis supplied). The Supreme Court, in Sarva Shramik Sanghatana (KV), Mumbai 2008(1) SCC 494 , held that as an application, under Section 25(0)(1) of the Industrial Disputes Act, is not a Suit, Order XXIII Rule 1(4) CPC is not attracted. Unlike an application under Section 25(0)(1) of the Industrial Disputes Act, Order XXIII Rule 1(4) CPC is applicable to Writ Proceedings under Article 226 of the Const....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uarrel 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 permit RDS to re-open and re-agitate issues regarding rejection of its bid pursuant to the earlier tender notice and the annulment of the entire tender process, even if the second tender notice sought to disqualify it from competition by altering the conditions of eligibility to its disadvantage. In fresh Writ Petition No.534 of 2011 filed by RDS not only were the amended conditions of the tender notice assailed but the validity of the resolution dated 4th October, 2010 and letter dated 6th October, 2010 was also sought to be re-opened no matter the same was already concluded with the withdrawal of Writ Petition No.8252 of 2010. RDS sought to use the liberty to challenge the amended terms of eligibility to re-open what ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 assign to them. Rule 59(1) of the A.P. VAT Rules, 2005 stipulates that, for the purpose of exercising the powers specified in column (2) of the table therein, the authorities, specified in column (3) thereof, shall be the authorities prescribed. Prior to its amendment, with effect from 21.01.2013, Rule 59(1)(4)(ii) of the A.P. VAT Rules stipulated that an Officer, not below the rank of Deputy Commercial Tax Officer of the Division concerned, as authorised by the Deputy Commissioner concerned, in case of the dealers in the territorial jurisdiction of the Division concerned, was empowered to pass an order of assessment. In Sri Balaji Flour Mills1 a Division bench of this Court held that although, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny 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, during the preceding month, and the amount or amounts collected by way of tax. Sub-Rule (5) of Rule 14-A stipulates that, if the return or returns are filed within the prescribed time by the dealer and such return or returns are found in order, the return or returns shall be accepted as self- assessment, subject to adjustment of any arithmetical errors, apparent on the face of the said return or returns. Sub-Rule (5A) stipulates that every dealer shall be deemed to have been assessed to tax, based on the returns filed by him, if no assessment is made within a period of four years from the date of filing of the return. Under Sub-Rule (6) if no return or returns have been submitted by the dealer, as r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T 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 to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This is equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. (Board of Trustees of Port of Kandla Port v. Hargovind Jasraj ; Smith v. East Elloe Rural District Council ). Even if the order is void/voidable, the party aggrieved thereby cannot decide that the said order is not binding upon them. They must approach the Court and seek such a declaration. The order may hypothetically be a nullity and yet, even if its invalidity is challenged b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 their office seal showed that the letters OCT (representing the month of October) were very close to each other; the letters OCT, contained in the seal affixed on the petitioners objection letter dated 22.10.2013, were more spacious; the stars in the original seal, and the stars of the seal affixed on the petitioners petition dated 22.10.2013, were different and distinguishable; the font of the letters on the original seal, and the seal affixed on the alleged petitions dated 22.10.2013, were dissimilar; while the objections were addressed to the Commercial Tax Officer, Sultan Bazar, acknowledgments were allegedly obtained by the petitioner from the office of the Deputy Commiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 an appeal as they did not wish to have the said Writ Petitions adjudicated on its merits. Though serious allegations of fabrication and forgery were made in the counter-affidavits filed by the 1st respondent herein in W.P. No.9175 of 2013, the affidavit filed in support of the present writ petitions are silent on these aspects. In the affidavits filed in support of the present Writ Petitions, the petitioner has neither referred to the contents of the counter-affidavit filed by the 1st respondent in W.P. No.9175 of 2013 nor to the contents of the documents enclosed thereto. No explanation is forthcoming from them regarding the grave and serious allegations of the C Forms and the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Rajasthan High Court, after referring with approval to its earlier judgment in Fatehlal v. State of Rajasthan , held:- An antisocial adventurer cannot claim for his nefarious and injurious activities any greater legal regard than for the defence of society, itself. If members belonging to higher status in life should show scant regard for the laws of this country which are for public good, for protecting the common man, the consequential punishment for the violation of such laws must be equally deterrent and such person should be made to suffer inequital for the harm he has done to the society. I am, therefore, convinced that it is time that exploitation abuse and misuse of equitabl....