TaxTMI 
TaxTMI 
2013 (2) TMI 642
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....are not to be detained. 2. By exhibit P1 order dated July 5, 2011, the Commissioner of Commercial Taxes ordered as follows: "It is brought to notice of the undersigned that an enquiry file relating to six dealers are pending with the Investigation Branch, Thrissur. It is also recommended that a special team may be constituted for the disposal of the pending file, and to pursue from the investigation, if necessary, and to initiate penal and prosecution steps against the defrauders so that the heavy loss caused by them to the State exchequer may be made good forthwith. In the circumstances, a special team is hereby constituted for the above purpose with the following officers and headed by Sri. K.P. Sajeevan, Inspecting Assistant Commissioner (Int.), Kozhikode: 1. K.P. Sajeevan, Inspecting Assistant Commissioner (Int), Kozhikode. 2. H.P. Haridasan, Int. Officer (I.B), Tcr. 3. T.V. Shaji, Int. Officer, Sq. No. III, Thrissur. 4. Smt. P.V. Premi, Int. Inspector (IB), Thrissur 5. Sreeraj K. Pillai, CTI (IB), Tcr. 6. C.R. Santhosh, CTI (I.B), Tcr. 7. Smt. Sini Sebastian, CTI (I.B), Tcr. The team should complete the work within three months." Subsequentl....
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.... this Act: Provided that the Commissioner may, by an order in writing, delegate any power vested in him to any officer appointed under subsection (3). (2) The Commissioner shall have superintendence over all officers and persons employed in the execution of this Act and the Commissioner may,- (a) call for returns from such officers and persons; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such officers and persons; (c) issue such orders, instructions and directions to such officers and persons as it may deem fit, for the proper administration of this Act. (3) The Government shall appoint as many Joint Commissioners, Deputy Commissioners, Deputy Commissioner (Appeals), Assistant Commissioner (Appeals), Assistant Commissioners, Commercial Tax Officers and such other officers as they think fit for the purpose of performing the functions respectively assigned to them by or under this Act. Such officers shall perform the said functions within such local limits as the Commissioner may assign to them. (4) All officers and persons employed for the execution of this Act shall observe and follow the orders, instructi....
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....the authority to pass orders of penalty. Secondly, it is also contended that there is a transgression of the principles of natural justice in so far as certain witnesses were not allowed to be cross-examined. 6. As far as the first point is concerned, they would also seek support from the following case law. Shri K.P. Mayankutty Mather would rely on the following case law: (i) Automotive Tyre Manufacturers Association v. Designated Authority [2011] 7 GSTR 1 (SC); [2011] 2 SCC 258. That was a case where the court took the view that principles of natural justice will apply unless it is excluded. (ii) He then relied on a judgment of a Division Bench of this court in Marico Industries Ltd. v. State of Kerala [2004] 134 STC 179 (Ker); [2003] 1 KLT 956. Therein a Bench of this court was dealing with a case under section 59A of the Kerala General Sales Tax Act, 1963 and the court, inter alia, held that the decision is to be rendered by the Commissioner of Commercial Taxes and the hearing was not institutional but personal, and that the Commissioner was not entitled to permit a subordinate officer to conduct the hearing. (iii) In Thomas Mathew v. Secretary to Government [199....
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.... Final decision was taken by the Minister-in-Charge. The question arose as to whether the principles of natural justice have been violated. The court, inter alia, held as follows: "While the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules imposes a duty on the Secretary to hear and the Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. Therefore, the said procedure followed in this case also offends another basic principle of judicial procedure." Shri Mayankutty Mather would also submit that having regard to the wording of section 67, the initial satisfaction must be entertained by the team itself and in this case it has not been so and when the Int....
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....rent lack of jurisdiction in which case it would be a nullity and the court, in fact, drew the distinction between the proceedings under the taxing laws and the proceedings instituted by way of a civil suit. (v) In Commissioner of Sales Tax, U.P. v. Sarjoo Prasad Ram Kumar [1976] 37 STC 533 (SC), the apex court was concerned with the case where the facts were as follows: "Lucknow was one of the circles formed under the U.P. Sales Tax Act, 1948, and, in that circle, there were several Assistant Sales Tax Officers. The assessee carried on his business in Sector III for which sector there was a separate Assistant Sales Tax Officer. For the assessment year 1959-60, the Assistant Sales Tax Officer, Sector II, issued to the assessee a notice under section 21 of the Act and, in due course, made an assessment on him. It was not shown that the Assistant Sales Tax Officer, Sector II, had also been conferred with jurisdiction to assess the dealers in Sector III. On appeal, the assessee contended that the Assistant Sales Tax Officer, Sector II, had no jurisdiction to assess him. That contention was upheld by the appellate authority, the revisional authority and the High Court." Therei....
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....dav Sadashiv Mule (dead) through Lrs. reported in [2004] 8 SCC 706 arose from a civil suit and therein the court held that where the court lacks inherent jurisdiction, the decree is void. It may be true that Cantonment Board v. Church of North India [2011] KHC 4506 arose out of a writ petition. 10.Shri G. Shrikumar, learned senior counsel drew our attention to the decision in Hasham Abbas Sayyad v. Usman Abbas Sayyad [2007] KHC 3060. That was a case which arose out of a suit filed for partition. In the course of the judgment, the apex court, inter alia, held as follows: "22. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to. (See Chief Justice of Andhra Pradesh v. L.V. A. Dikshitulu AIR 1979 SC 193 and MD Army Welfare Housing Org....
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....otice was issued proposing penalty to be imposed on the appellants by the Intelligence Officer. In particular, he would point out that in the notice, the factum of the constitution of the team was specifically mentioned. The objections were filed before the officer. Various communications were addressed by the parties to the Intelligence Officer. According to the statements filed by the Government, there were, no doubt, four persons. He would submit that the Inspecting Assistant Commissioner in whose office the sixth respondent was working was supervising and there were two other officers also. But, he would submit that the decision was taken by the Intelligence Officer who is the authorised officer. According to the learned Government Pleader, the matter falls to be considered within the four walls of section 3(2)(c) of the Act and it is a case where the Commissioner has assigned the officers concerned with certain duties. He would submit that actually the other officers who are members of the team constituted under exhibit P1 supplemented by exhibit P1(a), would not have jurisdiction to impose the penalty. As far as the question relating to violation of natural justice, he would ....
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....nst the appellants. Yet another relief sought is to direct the respondents to properly adjudicate the penalty proceedings based on the materials on record and other evidence. There are other reliefs sought with which we are not to be detained. By exhibit P1 order dated July 5, 2011, the Commissioner of Commercial Taxes ordered as follows: "It is brought to notice of the undersigned that an enquiry file relating to six dealers are pending with the Investigation Branch, Thrissur. It is also recommended that a special team may be constituted for the disposal of the pending file, and to pursue from the investigation, if necessary, and to initiate penal and prosecution steps against the defrauders so that the heavy loss caused by them to the State exchequer may be made good forthwith. In the circumstances, a special team is hereby constituted for the above purpose with the following officers and headed by Sri. K.P. Sajeevan, Inspecting Assistant Commissioner (Int.), Kozhikode: and gambled for a favourable decision. Having courted an unfavourable one, they cannot be permitted to turn around and seek the discretionary relief under article 226 of the Constitution in the facts of t....