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The Hyderabad Allwyn Metal Works Ltd. Vs. the Deputy Commissioner, Commercial Taxes, Hyderabad Division and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition Nos. 411 and 2883 of 1968
Judge
Reported in[1972]29STC153(AP)
AppellantThe Hyderabad Allwyn Metal Works Ltd.
RespondentThe Deputy Commissioner, Commercial Taxes, Hyderabad Division and ors.
Appellant Advocate B.K. Seshu and ; T. Anantha Babu, Advs.
Respondent Advocate The Third Government Pleader
Disposition Petition dismissed
Excerpt:
.....other authority. we are therefore satisfied that there is no substance in the contention that the deputy commissioner had surrendered his power of reassessment. we are not satisfied that the petitioner was not aware of the circular issued by the board of revenue at the time when correspondence went on between them. the objection, as stated earlier, is raised for the first time in this court and it seems to us clearly to be an afterthought. their failure to assert the alleged disqualification on the part of the deputy commissioner amounted to a waiver of the objection. it is not disputed that the appellate tribunal is quite competent to go into the questions of fact as well as questions of law. when the appeals are pending, merely because the appellate tribunal would insist on the..........turnover relating to the value of bus bodies built by the petitioner for their customers.4. the deputy commissioner, hyderabad division, issued a notice on 23rd december, 1966, under section 14(4)(c) and section 20 of the act and the rules made thereunder proposing to revise the assessment order mentioned supra.5. in reply to the said notice, the petitioner sent an elaborate letter on 30th april, 1967. its contention was that the exemption granted by the assessing authority was correct.6. another notice was given by the deputy commissioner on 17th may, 1967, explaining the position and trying to meet the points raised in the reply by the petitioner. the petitioner again gave a reply to the said notice on 8th june, 1967. it stuck to the objections which it had raised7. it is at this.....
Judgment:

Gopal Rao Ekbote, J.

1. Writ Petition No. 411 of 1968 arises out of an order of reassessment relating to the assessment year 1962-63. Writ Petition No. 2883 of 1968 arises out of a similar order which relates to the assessment year 1963-64. In both these cases, the petitioner is the same.

2. The material facts in brief are that the petitioner was finally assessed to tax for 1962-63 on a net turnover of Rs. 30,19,173.51 at different rates under the Andhra Pradesh General Sales Tax Act. While making the assessment order, the assessing authority had granted exemption on a turnover of Rs. 65,89,842.00 towards the value of the bus bodies built and sold by the dealer.

3. Similarly for the year 1963-64 an order of assessment was passed granting exemptions on the turnover relating to the value of bus bodies built by the petitioner for their customers.

4. The Deputy Commissioner, Hyderabad Division, issued a notice on 23rd December, 1966, under Section 14(4)(c) and Section 20 of the Act and the Rules made thereunder proposing to revise the assessment order mentioned supra.

5. In reply to the said notice, the petitioner sent an elaborate letter on 30th April, 1967. Its contention was that the exemption granted by the assessing authority was correct.

6. Another notice was given by the Deputy Commissioner on 17th May, 1967, explaining the position and trying to meet the points raised in the reply by the petitioner. The petitioner again gave a reply to the said notice on 8th June, 1967. It stuck to the objections which it had raised

7. It is at this stage that the Deputy Commissioner thought that no useful purpose would be served in entering into correspondence and then enquired into the merits of the case. He made the final order of reassessment on 27th June, 1967. By this order the Deputy Commissioner reached the conclusion that the assessing officer had previously wrongly considered that it was a case of works contract and had wrongly exempted the turnover from levy of tax. Rejecting the contentions raised by the petitioner before him, the Deputy Commissioner assessed the turnover to a tax of Rs. 4,61,288.94 in regard to the assessment year 1962-63. A similar order was passed for the year 1963-64.

8. The petitioner preferred appeals before the Sales Tax Appellate Tribunal. The petitioner filed an application for stay before the said Tribunal. The Tribunal, however, refused to grant stay on the ground that there was no provision in the Andhra Pradesh General Sales Tax Act to grant stay in such cases. The petitioner also filed before the Tribunal a communication from the Government to the effect that the collection of tax be stayed and prayed that the appeals may be entertained, but the Tribunal expressed that the communication cannot be acted upon. The appeals were then posted for hearing on 31st January, 1968.

9. The petitioner felt that in view of Section 21(6) of the Act unless proof of payment of tax is produced, the appeal will not be entertained by the Tribunal. It filed the first writ petition on 27th January, 1968, and the second writ petition on 1st July, 1968, for the issue of a writ of certiorari to quash the assessment orders passed by the Deputy Commissioner in both these cases.

10. The first contention raised in this case was that the Deputy Commissioner surrendered his decision to revise the assessment to the Board of Revenue inasmuch as he reopened the assessment at the dictation of the Board of Revenue. The assessment orders therefore are vitiated and cannot be allowed to sustain.

11. In order to appreciate this contention, it is necessary to mention that in W. P. No. 2883 of 1968 it was alleged in paragraph 14 of the affidavit:

In obedience to the said directions the first respondent herein started revisional proceedings from 1957-58 onwards even though the assessments for several years have become final and the revision proceedings are barred bv limitation.

12. In the earlier paragraph 13 it was contended that:

the petitioner understands and believes the same to be true that in late 1964, the Board of Revenue suddenly changed its view and directed all its subordinate officers to assess transactions of the building of bus bodies on the chassis in all pending cases and also closed cases by invoking the powers of revision in the latter cases wherever is necessary and possible.

13. There was, however, no specific reference to the circular issued in this behalf. It is only in the 'reply affidavit which was filed on 17th December, 1970, a day earlier when the cases were taken up for consideration that a reference is made to the said circular. The circular is dated 1st September, 1964, and Board's reference is No. 3682/64-1. It is unnecessary to reproduce the circular because its substance has already appeared in paragraph 13 of the petitioner's affidavit.

14. In the counter in paragraph 5 there is a general denial of the fact that the revision was made at the behest of someone else.

15. It is upon these facts that we have to consider whether the impugned orders are vitiated because of the abdication of the power by the Deputy Commissioner in favour of the instructions given by the Board of Revenue.

16. Now it is beyond dispute that the essential characteristic of what is often called 'natural justice' is put by Romans in two maxims : (1) Nemo judex in causa sua and (2) audi alterant pattern. We may put the same in two words, impartiality and fairness. Natural justice therefore requires not only that a person be heard but that he be given a fair hearing; that the Tribunal be not biased but impartial.

17. If the party was not allowed to state his case, there would be nothing to stop oppression and how can a citizen be satisfied unless he feels that those who decide his case come to their decisions with open mind.

18. Now, bias may be attributed because of the existence of various factors. One such factor which is brought under the heading of 'bias' is the surrender of an authority's discretion to an outsider. An exercise of discretion would be vitiated if instead of exercising it itself on its own, the authority exercises it at the dictation of some other person. For, although it is then acting itself, it is not its own discretion which governs the act, as the Legislature intended that it should be. To obey instructions means that the Tribunal was abdicating the discretion given to it by the Legislature and allowing that discretion to be exercised by a person not so authorised by the Legislature. In such a case, the Tribunal would be deemed to have declined to exercise its jurisdiction because it chose to decide not on its own but at the behest and dictation of another authority.

19. This is based on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done. It is realised that this is a matter where appearance is also as important as reality. But in that connection the warning administered by the Court of Appeal in Morelle Ld. v. Waterworth [1955] 1 Q.B. 1 at p. 41 should always be borne in mind. The Court of Appeal protested against the tendency to impeach judicial or quasi-judicial decisions 'upon the flimsiest pretext of bias' and against the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done.

20. The abdication in favour of another person in matters relating to the exercise of discretion has, however, two aspects. One acting at the dictation of someone else. In other words, surrendering one's own statutory power in favour of someone who does not possess that power. This is not the aspect with which we are concerned in this case. It is nobody's case that in these individual cases there has been a surrender of power in favour of the Board of Revenue or that in these individual cases the assessing authority has acted on merits under the dictation of the Board of Revenue. The contention is that in pursuance of the general instructions issued by the Board of Revenue the assessing authority has commenced the reassessment proceedings.

21. It is here that the second aspect of surrendering discretion arises. Surrender of independent discretion in favour of the adoption of a policy pursued by a superior authority is that aspect.

22. Authorities directly entrusted with statutory discretions, be they executive officers or members of distinct tribunals, are usually entitled and often are obliged to take into account consideration of public policy and in some context the policy of a Minister or of the Government or of a superior authority. On the whole it may be a relevant factor in weighing the relevant considerations in a given case.

23. That this is so is seen from a decision of the Supreme Court in Purtabpur Co. v. Cane Commissioner, Bihar A.I.R. 1970 S.C. 1896. In that case, although it was observed that in the matter of exercise of power under Rule 6(1), the State Government and the Cane Commissioner were concurrent authorities and their jurisdiction was co-ordinate and although it was found from the documents that the Chief Minister directed the Cane Commissioner to divide the reserved area into two portions and ultimately it was the Chief Minister who had passed the final order, as the order was issued in the name of the Cane Commissioner, it was observed that

the only conclusion possible is that the Chief Minister imposed his opinion on the Cane Commissioner.... It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner.

24. It is after these observations that the relevant portion appears in paragraph 14. It is stated :

The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.

25. It will thus be clear that although the officer with whom the discretion is entrusted may adopt his own policy or keep in view the policy framed by his superior authority, nevertheless he will not be absolved of his duty to exercise his personal judgment in individual cases unless of course, as stated earlier, explicit statutory provision has been made that they should carry out the instructions given by the statutory authorities. In this case, undoubtedly there is no provision under which the Board of Revenue or the Government can give statutory instructions. Thus the circular at best can be said to have invited the attention of the assessing authorities to the position of law in the light of some reported decisions and had evolved a policy that in such cases the assessing authorities may, if possible and found necessary, reopen the assessment or decide the individual cases keeping in view the provision of law in that behalf.

26. The exercise of a statutory discretion is not illegal because of the fact that the assessing authority adopted or followed the policy laid down by his superior or by himself in certain class of cases. The Tribunal, as seen above, can adopt a policy about some matter either of its own or laid down by the superior authority and even can adhere to it. What is, however, illegal is that when it is empowered to decide something it should decide without reference to the merits of the case at all and only on the basis of policy alone. However firm its policy may be, nothing can absolve the Tribunal from the duty of forming its own judgment on the facts of each case if that is what the statute intended. In such a case the point is not whether there was a biased hearing but whether there was any hearing at all. In a case where the Tribunal mechanically acted in pursuance of the policy, then it can very easily be said that there was no hearing at all. But in a case where although he keeps in view the policy, nevertheless in an impartial way considers the case on its own merits, it cannot legitimately be contended that it is a case where fair hearing was not given or that it is a biased judgment.

27. If the present case is examined in the light of what is stated above, it would be clear that although the Board of Revenue in the said circular had invited the attention of the assessing authorities to the legal position in regard to the definition of works contract and that of the term 'sale' it has not sought to impose its own decision in individual cases. It has left a larger discretion with the assessing authority in matters of reopening of the assessment. The circular categorically states that if it is found necessary or possible, then alone action in that direction can be taken. Thus the final decision of a quasi-judicial character was left with the assessing authorities. The circular therefore cannot be said to have imposed its will in any individual cases. The assessing authority, even if it is assumed that it kept the said circular in view, that by itself, though there is no evidence to that effect, in our opinion, would not vitiate the exercise of its discretion in passing the final orders of reassessment. The question really is whether the Deputy Commissioner without applying his mind blindly reassessed merely in pursuance of the said circular. We do not think there is any material to hold that the Deputy Commissioner did it. On the other hand, there is enough material to hold that it is only when the assessing authority was satisfied about the position of law and the merits of the case that it decided to proceed with the reassessment and then finally determined the matter. Whether such determination is right or wrong is altogether a different question. Thus although the attention of the Deputy Commissioner may have been drawn by the Board of Revenue to the position of law, it cannot be said that the superior authority has in any manner imposed its policy upon the Deputy Commissioner in the instant cases. There was no suggestion that the enquiry was not properly conducted or that the mind of the Deputy Commissioner was so foreclosed that he gave no genuine consideration to the objections raised by the petitioner. It is not established that the Deputy Commissioner had forejudged any genuine consideration of the objections or that he had not considered the objections at the stage where they were submitted to him. Therefore it is difficult to hold that the Deputy Commissioner was guilty of gross bias.

28. It is relevant in this connection to note that the Deputy Commissioner gave two notices and there were replies given by the petitioner. He categorically stated in the order that he has examined all the contracts. There is nothing in the order which suggests that he was in any manner influenced in the individual cases by the circular. It is also pertinent in this connection to note that the circular does not say that whatever may be the merits of the cases, there should be reassessment and recovery of tax. It merely explains the position of law and invites the attention of the assessing authorities. More than that it is not possible to read in the said circular. It is also seen that the Assessing Authority was by then aware of the reported relevant decisions also.

29. In this connection it is worthwhile to refer to a decision of the Supreme Court in Commissioner of Police v. Gordhandas A.I.R. 1952 S.C. 16. The Supreme Court, referring to the affidavit of the Commissioner of Police, observed that 'within a month of the order, the Committee advised that the application should be granted. Accordingly, the Commissioner accorded the necessary permission by his letter dated 14/16th July, 1947. There was no reference there to the recommendation of the Advisory Committee, and though they may have weighed, and rightly, with the Commissioner there was nothing on the face of the letter to indicate that the decision was not that of the Commissioner himself given in bona fide exercise of the discretion vested in him.'

30. In fact the Commissioner in his affidavit had admitted,

I was fully satisfied that the petitioner's application should be refused but that it was only at the instance of the Cinema Advisory Committee that I granted the said permission on 14th July, 1947.

31. The Supreme Court further said :

That however, would not affect the validity of his order. There is no suggestion that his will was overborne or that there was dishonesty or fraud in what he did. In the absence of that, he was entitled to take into consideration the advice thus tendered to him by a public body set up for this express purpose, and he was entitled in the bona fide exercise of his discretion to accept that advice and act upon it even though he would have acted differently if this important factor had not been present to his mind when he reached a decision. The sanction accorded of 16th July, 1947, was, therefore a good and valid sanction,

32. Again in paragraph 8 their Lordships observed :

It will be necessary at this stage to determine whether this was a cancellation by the Commissioner on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other authority. We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commissioner but merely intimation by him of an order passed and made by another authority, namely the Government of Bombay..We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of the explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

33. If in the light of what is stated above the final reassessment orders are seen, we do not find reference to the circular or advice given by the Board of Revenue. There is no whisper anywhere which would persuade us even to suspect that the Deputy Commissioner in any manner acted in pursuance of the circular and had not applied his mind to the facts of the present case. In fact the materials speak the other way. He entered into an over-elaborate correspondence and passed an order giving his own reasons for reaching the conclusion to which he reached. We are therefore satisfied that there is no substance in the contention that the Deputy Commissioner had surrendered his power of reassessment. In this connection, it is also pertinent to note that the original allegation in the writ petition was that the reassessment was opened by- the direction given by the Board of Revenue. There was no allegation that the final order was made because of the circular. In the reply affidavit, which was filed only when the case was ripe for hearing and which did not provide an opportunity to the other side to rebut, what all is stated in that cannot be taken into account. Even if it is taken into account, it does not improve the case as stated by the petitioner originally.

34. In this connection, it is relevant to note that the petitioner at no stage of the proceedings took any exception on the ground of bias on the part of the Deputy Commissioner. We are not satisfied that the petitioner was not aware of the circular issued by the Board of Revenue at the time when correspondence went on between them. The writ petition itself makes a reference in substance to the instructions issued by the Board of Revenue although there was no specific reference to the circular which was made subsequently. The petitioner carried on correspondence with the Deputy Commissioner and had a full say on matters of fact and on matters of law. A litigant cannot wait until an adverse decision has been made or until the proceedings have long been in progress and then belatedly propose that the Tribunal's order be revised by a reviewing court because of its previous unchallenged bias. A party cannot be permitted to assume the competence of the Tribunal to decide in its favour and its incompetency to decide against it. The objection, as stated earlier, is raised for the first time in this court and it seems to us clearly to be an afterthought. Their failure to assert the alleged disqualification on the part of the Deputy Commissioner amounted to a waiver of the objection. That such an objection can be waived is seen from the following judgments: Nanak Lal v. Dr. Prem Chand A.I.R. 1957 S.C. 425 at 429, R. v. Nailsworth Licensing JJ [1953] 2 All E.R. 652 at 655 and Rex v. Williams, Ex parte Phillips [1914] 1 K.B. 608 at 613 and 614.

35. It was then contended that the Deputy Commissioner did not consider all the contracts to find out whether they were works contracts or not. It was also contended that the Deputy Commissioner did not consider whether the transactions of so-called sale are separable in their nature and on that basis we are asked to quash the order and remit the cases to him, so that the Deputy Commissioner may consider in detail all the contracts and decide the points of law. We do not however think it possible and not even necessary. The Appellate Tribunal, if it thinks necessary, can consider these points itself or ask for the opinion of the Deputy Commissioner, if so required. These are all questions of fact and it is not possible for this court to go into them. We do not wish to say anything which may influence the Appellate Tribunal in one way or the other. It is perhaps enough to say that the points of view put by the petitioner in its letters and before the Deputy Commissioner seem to us to have been considered by the Deputy Commissioner in his order now impugned. Since the appeals are pending before the Appellate Tribunal against these very orders, it is not permissible to go into the merits of those points. It is not disputed that the Appellate Tribunal is quite competent to go into the questions of fact as well as questions of law. When the appeals are pending, merely because the Appellate Tribunal would insist on the payment of tax before they hear and dispose of the appeals, it will not be proper for the High Court to go into the questions of fact as well as law only to facilitate the disposal of the cases without being required to pay the tax. The Supreme Court has been deprecating and we have also had pccasions to make observation to the same effect that the petitioners should not ordinarily be allowed to circumvent the statutory remedies available to them under the' taxation law. It is for the petitioner to exhaust all the remedies available to it. Merely because under the statute it may be required to pay the tax before it is heard in the appeal, it would not be possible for this court to interfere under Article 226 of the Constitution unless of course the objections raised go to the very root of the jurisdiction, such as the one with which we have dealt with. Since these petitions raise objections relating to the facts and the questions of law raised in the appeals, we do not think it proper to make any observation in that behalf or decide them here. It is open to the petitioner to raise these and other grounds available to it before the Appellate Tribunal and we have no reason to suppose that the Appellate Tribunal would not consider them and dispose them of in accordance with law.

36. Since this court had already granted stay during the pendency of these writ petitions, and it is more than two years that the appeals are pending before the Tribunal, in the circumstances of the case, we consider it reasonable that the Tribunal should dispose of the appeals expeditiously without insisting on the payment of the tax. This observation is made because of the averments made in paragraph 21 of the affidavit filed along with the writ petition, in W.P. No. 2883 of 1968.

37. Subject to the abovesaid observations, the writ petitions are dismissed with costs. Advocate's fee Rs. 250 for both the cases.


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