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The Excise and Taxation Officer, Assessing Authority Vs. Kapoor Weaving Factory - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 144 of 1971
Judge
Reported in[1973]31STC325(P& H)
AppellantThe Excise and Taxation Officer, Assessing Authority
RespondentKapoor Weaving Factory
Appellant Advocate N.K. Sodhi, Adv. for;Adv.-General
Respondent Advocate Bhagirath Dass,; B.K. Jhingan and; S.K. Hirajee, Adv
DispositionAppeal dismissed
Cases Referred(S.C.) and Raghubar Mandal Harihar Mandal v. The State of Bihar
Excerpt:
.....well as under the central act had been cancelled. 6. this is a question of fact, which on good grounds has been found against the appellant by the learned single judge......clause x of the letters patent directed against a judgment, dated 7th december, 1970, of a learned single judge of this court.2. the petitioner-respondent obtained a registration certificate as a dealer under section 7 of the punjab general sales tax act, 1948 (hereinafter called the act), in 1969. the certificate was for sale and purchase of yarn and cloth as also for the manufacture of cloth under the name and style 'lavindra weaving factory, outside chatiwind gate, amritsar'. a registration certificate was also obtained by the petitioner under the central sales tax act, 1956. its number was amr.cst. 3391. in october, 1964, the assistant excise and taxation officer, amritsar, issued a notice to the petitioner-respondent that since they were not carrying on business in their premises,.....
Judgment:

Ranjit Singh Sarkaria, J.

1.This is an appeal under Clause X of the Letters Patent directed against a judgment, dated 7th December, 1970, of a learned single Judge of this court.

2. The petitioner-respondent obtained a registration certificate as a dealer under Section 7 of the Punjab General Sales Tax Act, 1948 (hereinafter called the Act), in 1969. The certificate was for sale and purchase of yarn and cloth as also for the manufacture of cloth under the name and style 'Lavindra Weaving Factory, outside Chatiwind Gate, Amritsar'. A registration certificate was also obtained by the petitioner under the Central Sales Tax Act, 1956. Its number was AMR.CST. 3391. In October, 1964, the Assistant Excise and Taxation Officer, Amritsar, issued a notice to the petitioner-respondent that since they were not carrying on business in their premises, they should appear and show cause as to why their registration certificate be not cancelled. After receiving the reply from the petitioner, no further action was taken. A similar notice was issued again on 17th December, 1965, but no action was taken after considering the reply sent by the petitioner. On 23rd January, 1968, another notice was served substitutedly on the petitioner to show cause why its registration certificates under the Punjab Act and the Central Act be not cancelled on the undermentioned grounds : (i) The business had been closed; (ii) Diamond Steel Industries were functioning in the premises; (iii) They were misusing their registration certificate. On 30th January, 1968, the Advocate for the petitioner submitted a letter on behalf of the petitioner in which the allegations in the notice were denied. On the same date, the Assessing Authority passed an order stating that 'inquiries got made through the inspectorate staff and from other sources disclosed that the dealer had closed the business premises and it is not actually making purchases of goods but exclusively charging a small remuneration for the use of its registration certificate'. It was further concluded that 'the dealer had misused the registration certificate in violation of the provisions of the Act and the Rules by not furnishing its return for the last more than three years'. In the result, an order cancelling Registration Certificate No. AMR. IV-11753 issued under the Punjab Act was passed, but nothing was said in that order about the Registration Certificate No. AMR. CST. 3391 issued under the Central Act. In the communication, however, which was issued on the basis of that order, it was mentioned that the registration certificates issued under the Punjab Act as well as under the Central Act had been cancelled. The petitioner impugns this order and the communication regarding the cancellation of bis registration certificates.

3. Two contentions were canvassed before the learned single Judge on behalf of the petitioner :

(1)That no opportunity was afforded by the Assessing Authority to the petitioner to rebut the material collected by it and consequently, the impugned order being against the principles of natural justice, was illegal;

(2)That although the order, dated 30th January, 1968, directed the cancellation of Registration Certificate No. AMR. IV-11753 only, yet in the communication issued in pursuance thereof, mention was made of the cancellation of Registration Certificate No. AMR. CST. 3391 also.

4. Both these contentions were accepted by the learned single Judge and, as a result, the writ petition was allowed and the impugned order dated 30th January, 1968, was quashed. That is how the Assessing Authority has come up in Letters Patent Appeal before us.

5. Shri N. K. Sodhi, the learned counsel for the appellant, has no quarrel with the principle that an order cancelling a registration certificate is a quasi-judicial order and has to be passed after affording due opportunity to the certificate-holder to rebut the material collected against him. Indeed no exception to this principle could be taken as it has the approval of no less an authority than their Lordships of the Supreme Court : (see Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal [1954] 26 I.T.R. 775 (S.C.) and Raghubar Mandal Harihar Mandal v. The State of Bihar [1957] 8 S.T.C. 770 (S.C.). Mr. Sodhi, however, maintains in a faint-hearted manner that, in the instant case, the petitioner-respondent fully knew the material against him and had due opportunity to rebut the same.

6. This is a question of fact, which on good grounds has been found against the appellant by the learned single Judge. That finding cannot be reopened in Letters Patent Appeal. In any case, there is nothing on the record to show that any copy of the material collected by the Assessing Authority through the inspectorate staff, was communicated to the petitioner-respondent. We, therefore, repel the first point raised by Mr. Sodhi.

7. Next it was contended that since the petitioner had not exhausted its remedies under the Sales Tax Act, the learned Judge ought to have thrown out the petition on that score alone. The contention is devoid of merit.

8. It must be remembered that the existence of an alternative remedy, statutory or otherwise, is not an absolute bar to the grant of the extraordinary relief under Articles 226/227 of the Constitution. It is only a circumstance which the High Court, as a matter of practice, but not as a cast-iron rule of law, takes into account, while exercising its extraordinary powers under the aforesaid Articles. The objection was raised before the learned single Judge, who rejected it in these terms:

In the circumstances of this case, I find that the impugned order was passed by the Assessing Authority without observing the principles of natural justice and is, therefore, without jurisdiction. I have no hesitation in quashing the same in this writ petition, even if the petitioner did not avail of the remedies provided under the Act.

9. We are in respectful agreement with the above observations.

10. In the light of what has been said above, this appeal fails and is dismissed without any order as to costs.


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