Judgment:
ORDER
N.K. Mody, J.
1. Being aggrieved by the order dated September 15, 2005 (annexure Pll), whereby cancellation of registration passed by the Commercial Tax Officer was confirmed, the present petition has been filed.
2. Short facts of the case are that the petitioner which is as private limited company got itself registered as dealer under Section 22 of the Madhya Pradesh Commercial Tax Act, 1994 which shall be referred (hereinafter as, 'the MPCT Act'). The address of the petitioner was shown as 35/46 Badi Bhamori, Indore. Registration of the petitioner was cancelled by the Commercial Tax Officer, vide order dated July 30, 2005, on the ground that upon inspection it was found that no business is carried out on the spot mentioned in the registration. Against which revision was filed by the petitioner before the Deputy Commissioner of Commercial Tax, which was dismissed, against which the present petition has been filed.
3. Learned Counsel for the petitioner submits that the petitioner is carrying on business at all the relevant time, which is evident from the fact the petitioner has submitted the returns regularly and also paid commercial tax levied upon. It is submitted that because of the fact that construction work of bridge and road by the Corporation was going on, therefore, the petitioner who is carrying on the business of timber, shifted the business temporarily. It is submitted that this fact has also been not disputed by the revisional authority. It is submitted that in the facts and circumstances, the order, annexure P11, deserves to be quashed.
4. Shri Umesh Gajankush, learned Counsel for the respondents, submits that if the place of business is changed then the dealer is required to submit the information under Section 48 of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994. It is submitted that as per Rule 12 of the Madhya Pradesh Vanijyik Kar Niyam, 1995, dealer is bound to inform the information regarding change of the business which reads as under:
48. Information to be furnished regarding changes of business.--If any registered dealer or other dealer who is required to furnish returns under Sub-section (1) of Section 26--
(a) sells or otherwise disposes of his business or any part or place of his business or effects or comes to know of any other change in the ownership of the business; or
(b) discontinues his business or changes his places of business or opens a new place of business; or
(c) changes the name or nature of his business,
he or if he dies, his legal representative shall within the prescribed time, inform the prescribed authority accordingly.
5. Relevant part of Rule 12 of the Niyam, 1995 reads as under:
12. Information under Section 48.--(1) Every dealer or if he dies, his legal representative who is required to furnish information under Section 48, shall within thirty days of the occurrence of any event furnish the information relating to such event in writing together with his registration certificate, if any, to the registering authority for cancellation, amendment or replacement thereof, as the case may be.
(2) and (3)...
6. From a perusal of Section 48 it is evident that dealer is required to furnish the return, under Section 26(1) of the Act regarding sells or otherwise disposes of his business or any part or place of his business or effects or comes to know of any other change in the ownership of business or discontinues his business or changes his place of business or opens a new place of business or changes the name or nature of his business within the prescribed time before the prescribed authority. Rule 12 of the Rules also deals with the information which is required to be submitted by the dealer.
7. In the present case undisputedly the petitioner has changed the premises. According to the petitioner the shifting was temporarily, therefore, no information was submitted. Since, the petitioner has regularly submitted the return.
8. In the matter of Dwarka Nath v. Income-tax Officer : [1965]57ITR349(SC) , honourable apex court has observed that writ of certiorari can be issued against the order of Commissioner passed in revision. In the matter of Surya Devi Rai v. Ram Chander Rai reported in : AIR2003SC3044 , the question arose before the Supreme Court was whether an aggrieved person is completely deprived of the remedy of judicial review, if he has lost at the hands of the original court and the appellate court though a case of gross failure of justice having been occasioned can be made out. The apex court held that, 'the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 of the CPC by Amendment Act 46 of 1999 does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court, nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken way or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well-settled.'
9. In view of the aforesaid position of law, this court has ample jurisdiction to examine the correctness of the impugned order passed by respondents.
10. From a perusal of the record it is evident that even after the change of business the petitioner has regularly submitted the return and deposited the commercial tax quarterly. Therefore, there is nothing on record on the basis of which it can be said that the petitioner did not inform malafidely the change of business premises temporarily.
11. It is no more in dispute that the petitioner has changed the premises temporarily and also not informed within time to the concerned authority. In reply to show cause notice, the petitioner has submitted the detailed explanation. From a perusal of the order impugned herein it is evident that the explanation submitted by the petitioner has not been taken into consideration by respondent No 1.
12. Rule 92 of the Madhya Pradesh Vanijyik Kar Niyam, 1995 provides for penalty in case of committing breach by any person which lays down as under:
Any person committing a breach of any of the provisions of these rules shall be punishable with fine which may extend to rupees five hundred for each offence and when the offence is a continuing one, with fine not exceeding twenty-five rupees for every day the breach is continued.
13. In the facts and circumstances of the case the petition stands allowed and the order annexure P9, whereby the registration of the petitioner as dealer has been cancelled and the order annexure P11 whereby the order annexure P9 has been confirmed are quashed with a direction to respondent No. 1 to impose the maximum penalty permitted under the law on the petitioner for not furnishing the information regarding change of address temporarily. No order as to costs.