Skip to content


The Indian Officers' Association Vs. Deputy Commercial Tax Officer, Royapettah Division (01.04.1972 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 1142 of 1967
Judge
Reported in[1973]31STC138(Mad)
AppellantThe Indian Officers' Association
RespondentDeputy Commercial Tax Officer, Royapettah Division
Appellant AdvocateN. Venkatarama Iyer and ;S.Y. Raghuraman, Advs.
Respondent AdvocateK. Venkataswami, First Assistant Government Pleader (Tax)
DispositionPetition dismissed
Cases ReferredMadras v. Young Men
Excerpt:
- t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and..........challenge the assessments earlier, it is actually seen from the assessment records that there were orders of assessment for each of the years from 1961-62 to 1966-67, that as a matter of fact, in respect of one year, i.e., 1959-60, the petitioner actually challenged the order of assessment made on it by filing an appeal before the appellate assistant commissioner and that the appellate assistant commissioner dismissed jhe appeal. it appears that the petitioner has been approaching the government for exemption from the sales tax. but that attempt was unsuccessful. even though there was no specific exemption granted by the government, the petitioner has been contending that it is entitled to the benefit of the g.o. no. 4014, revenue, dated 20 th september, 1961, exempting the hostels run.....
Judgment:
ORDER

Ramanujam, J.

1. The petitioner, the Indian Officers' Association, challenges by way of writ of certiorari a demand issued by the sales tax department for a sum of Rs. 4,523.45 being the amount of sales tax assessed on the petitioner for the various years from 1961-62 to 1966-67. Though the learned counsel for the petitioner at the time of the argument stated that there were no regular assessments and the demand dated 15th March, 1967, was issued for the first time and that they had no opportunity to challenge the assessments earlier, it is actually seen from the assessment records that there were orders of assessment for each of the years from 1961-62 to 1966-67, that as a matter of fact, in respect of one year, i.e., 1959-60, the petitioner actually challenged the order of assessment made on it by filing an appeal before the Appellate Assistant Commissioner and that the Appellate Assistant Commissioner dismissed Jhe appeal. It appears that the petitioner has been approaching the Government for exemption from the sales tax. But that attempt was unsuccessful. Even though there was no specific exemption granted by the Government, the petitioner has been contending that it is entitled to the benefit of the G.O. No. 4014, Revenue, dated 20 th September, 1961, exempting the hostels run by the educational institutions from the levy of sales tax. The sales tax authorities have, however, taken the view that the petitioner-association will not come within the scope of the exemption granted in G.O. No. 4014, Revenue, dated 20th September, 1961 and, therefore, they have proceeded to assess the petitioner-association for sales tax on its sale of refreshments both to the students as well as its members.

2. In this writ petition, the petitioner does not seek to challenge the various assessments made on it, but merely challenges the demand made on the basis of those assessments which have become final. So long as the assessments stand, the demands issued by the department are merely consequential and, therefore, the petitioner cannot seek to quash the demand alone without actually questioning the correctness of the various assessments made on it. As a matter of fact, in this writ petition there is not even an allegation that the assessments made on it are invalid or void for any reason. They merely questioned the demand on the ground that the transaction of supply of refreshments to its members and the students, who reside in the hostel, are not sales liable to tax. If the transactions are not in fact sales, the petitioner could have resisted the assessments then and there by putting forward the plea that it was not liable to pay the sales tax on the transactions of sale of refreshments to its members and the students. But, no such attempt has been made and the assessment orders made on various years have been allowed to become final. The petitioner has not resorted to the various remedies provided under the statute to get over those assessments, if it felt aggrieved against those assessments.

3. The learned counsel for the petitioner contends that the petitioner is entitled to take advantage of the decision of the Supreme Court in The Joint Commercial Tax Officer, Harbour Division II, Madras v. Young Men's Indian Association, Madras and Ors. [1970] 26 S.T.C. 241, wherein the Supreme Court has laid down that there is no element of sale involved in a members' club supplying the refreshments to its members, as such supply would not involve any transfer of property from the club to its members. Even assuming that the principle of the above decision applies to the facts of this case, which is strongly controverted by the learned Government Pleader, the question is whether the petitioner, having allowed the assessment orders to become final, can seek to ignore the assessment orders and call upon this court to quash the demand as such and to prohibit the authorities from enforcing the assessment orders by issuing a demand on the ground that the assessment orders are without jurisdiction. Even assuming that the assessments are without jurisdiction, the proper remedy for the petitioner is to have the assessment orders set aside in the appropriate forums provided under the Act. It is only in cases where the assessment is based on an ultra vires provision of a statute it can be said that the assessment order based on such ultra vires provision would be a nullity and the court will be justified in restraining the department from enforcing the assessment orders. In this case, it is not a case of an assessment order being a nullity, but it is a case of the assessment order being erroneous on facts, if at all. The various assessment orders cannot, therefore, be treated as null and void, so that the petitioner could ask for a writ of certiorari to quash the demands issued on the basis of the assessment orders. Even in 'cases of assessments, which are based on an ultra vires provision of the statute, it is a well-established principle that the court has always the discretion either to grant the relief by way of prohibition from enforcement of the levy or by way of a mandamus to refund. This is clear from the following observations of the Supreme Court in The State of Madhya Pradesh and Anr. v. Bhailal Bhai and Ors. [1964] 15 S.T.C. 450:

Thus, where, as in these cases, a person comes to the court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application.

4. Ramaprasada Rao, J., in a recent decision in T.A. Kuppuswami Chettiar State of Madras [1971] 28 S.T.C. 570, while dealing with a similar situation expressed thus :

No one can take advantage of his own laches. If the petitioner has not availed himself of the statutory remedy of appealing against the original order of assessment and thus correcting it in that forum or in a higher forum, the respondents cannot be blamed for it. The respondents have taken the order as final as it has become final in the eye of law and have invoked the provisions of the Madras Revenue Recovery Act under Section 24 of the Tamil Nadu General Sales Tax Act, 1959. There is, therefore, no error of jurisdiction when the respondents have issued the impugned order. The petitioner if he had a remedy at all, had it before the forum other than the respondents. If he had not availed of such remedies, he cannot seek for such a relief under Article 226 either, for this would be by-passing the provisions of accredited statutes.

5. Even apart from the question of the maintainability of the writ against the demand without challenging the assessments as such, the petitioner, in my view, has not established his plea that its case falls within the principle of the decision of the Supreme Court in The Joint Commercial Tax Officer, Harbour Division II, Madras v. Young Men's Indian Association, Madras and Ors. [1970] 26 S.T.C. 241. The learned counsel for the petitioner states at the Bar after verification that the students, who are supplied with refreshments, are not members as such of the association, but their parents alone are the members and that the students are only the members of the hostel which is run by the association. It is stated that the hostel is run by the students themselves on a dividing system and the petitioner-association has nothing to do with the running of the hostel except having a general control. But this submission of the learned counsel runs quite contrary to the statement of facts mentioned in support of the affidavit in the writ petition, which specifically proceed on the basis that the association is running the hostel and is supplying the refreshments to the students attached to the hostel as well as to its members. I am not, therefore, inclined to agree with the case now put forward by the learned counsel for the petitioner that the hostel itself should be deemed to be an incorporated club supplying refreshments and food-stuffs to its members, that is the students, who are residing in the hostel and that such a supply will not come under the definition of 'sale' as defined in the Madras General Sales Tax Act. If this submission of the petitioner's learned counsel is true and correct, then this plea should have been put forward at the time of the assessments before the assessing authorities, who would have investigated the factual position. The petitioner did not in fact resist the assessments being made against it on the ground that it did not supply refreshments at all to students. As already stated, the association was assessed by the sales tax authorities on the ground that it has sold refreshments to its members as well as the students, who are non-members. If really the association has not sold the refreshments at all and it is the hostel run by the students themselves that supplied the refreshments to themselves, these facts should have been brought before the assessing authorities even at the time of the original assessment against the association. It is not possible for me, at this stage, in this writ petition which is directed against the impugned demand made against the petitioner-association, to go into the factual position as to whether, in fact, the supply was by the association or by the hostel run by the students themselves.

6. The writ petition is, therefore, dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //