Vip Industries Limited Vs. State of Madhya Pradesh and ors. - Court Judgment

Excerpt:
sales tax - assessment of tax - articles 14,226 and 227 of the constitution of india and section 18(7) and 39(1) of sales tax act -assessment order passed by assessing officer on basis of return filed by petitioner - thereafter, commissioner issued show cause invoking its suo motu revisional powers under section 39(1) of act and called upon petitioner as to why order of assessment be not set aside as it was prejudicial to interest of revenue - later on, commissioner set aside original assessment order and remanded case to assessing officer for making reassessment under section 18(7) of act - being aggrieved, petitioner filed appeal to board of revenue - appeal allowed and order of commissioner set aside - thereafter, for next assessment period assessing officer passed assessment order - feeling aggrieved, petitioner filed present petition on ground that board of revenue passed impugned order in favour of petitioner - held, challenge to impugned assessment order which is essentially based on factual submission is entirely misplaced and beyond powers of this court in exercise of extraordinary powers under articles 226 and 227 of constitution - this court is not appellate court to examine correctness of factual finding recorded by assessing officer when it held that particular sales effected by petitioner during period in question in favour of one company can be regarded as favoured sales or genuine sales - this exercise could be done only by appellate authority under act and not by this court - grounds taken by petitioner did not make out any case for quashment of assessment order - impugned order of assessment cannot be set aside on plea of article 14 of constitution - challenge was only on ground of order passed by board of revenue which has been negatived by this court - accordingly and in view of above, petition has no merit and is dismissed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 3. perusal of order of board of revenue dated july 31, 1998, filed and relied on by the petitioner clearly indicates that it relates to period from august 1, 1984 to july 31, 1985. the facts of the case that led to filing of an appeal by the petitioner to board of revenue for the period in question (august 1, 1984 to july 31, 1985) need mention. the petitioner contested the matter by filing a reply and urged that no case for revoking the original assessment order (september 29, 1987) is made out and hence invocation of suo motu power by the commissioner is bad. 5. i am unable to accept that the aforesaid order of board of revenue which arise out of the assessment period 1984-85 can be relied on to set aside the impugned assessment order which is for the period from august 1, 1989 to july 31, 1990. merely because in one year the particular sales effected by the petitioner (may be with same buyer) were held to be good for want of adequate material against the petitioner cannot by itself a ground to uphold all the sales even effected in subsequent years to be good.a.m. sapre, j.1. by filing this petition under articles 226 and 227 of the constitution of india, the petitioner has challenged the sales tax assessment order dated february 11, 1993 (annexure p10) for the period from august 1, 1989 to july 31, 1990.2. at the outset, learned counsel for the petitioner submitted by producing the copy of one order dated july 31, 1998, passed by board of revenue in appeal no. 256/pbr/91, that in view of order passed by the board of revenue in favour of petitioner, this petition has to be allowed and impugned order of assessment be set aside.3. perusal of order of board of revenue dated july 31, 1998, filed and relied on by the petitioner clearly indicates that it relates to period from august 1, 1984 to july 31, 1985. the facts of the case that led to filing of an appeal by the petitioner to board of revenue for the period in question (august 1, 1984 to july 31, 1985) need mention. an assessment order for the period from august 1, 1984 to july 31, 1985 was passed by the assessing officer on september 29, 1987 on the basis of the return filed by the petitioner. the commissioner then on august 17, 1990 issued a show cause invoking its suo motu revisional powers under section 39(1) and called upon the assessee as to why the order of assessment dated september 29, 1987 be not set aside as according to commissioner it was prejudicial to the interest of revenue. the petitioner contested the matter by filing a reply and urged that no case for revoking the original assessment order (september 29, 1987) is made out and hence invocation of suo motu power by the commissioner is bad. the commissioner by its order dated july 30, 1991, set aside the original assessment order (september 29, 1987) and remanded the case to assessing officer for making fresh reassessment under section 18(7) of the act in respect of period (august 1, 1984 to july 31, 1985). it is against this order of commissioner setting aside the order of original assessment and remanding the case for fresh reassessment, the petitioner filed appeal to the board of revenue. the board of revenue by its order dated july 31, 1998 allowed the appeal and set aside the order of commissioner. while allowing the appeal, this is what the learned member of board of revenue in para 6 held :'para 6--after hearing counsel for both sides and seeing the record, i find no material on record to show that the sales to the sole distributor were made at an abnormally low prices.'4. in effect the question that arose in the aforesaid litigation which eventually was decided by the board of revenue in favour of petitioner was, whether sales effected by the petitioner to their sole distributor (blow plast) during the period from august 1, 1984 to july 31, 1985 were made at an abnormally low prices so as to treat the transaction to be in the nature of a sale to a favoured buyer. it was held by the board of revenue that in the absence of any material on record to show that these sales can be regarded as sales to any favoured buyer the order of commissioner was set aside. as a result, the original assessment for the said period (august 1, 1984 to july 31, 1985) was restored and held to be legal.5. i am unable to accept that the aforesaid order of board of revenue which arise out of the assessment period 1984-85 can be relied on to set aside the impugned assessment order which is for the period from august 1, 1989 to july 31, 1990. merely because in one year the particular sales effected by the petitioner (may be with same buyer) were held to be good for want of adequate material against the petitioner cannot by itself a ground to uphold all the sales even effected in subsequent years to be good. the question whether sales effected in particular year of assessment is good or bad depends upon the facts relating to that particular sale and secondly it depends upon the material brought on record by the assessee to support the sales. it being a settled principle of law that every assessment year is separate and distinct having no connection with the earlier one or subsequent one equally applies to the fact of this case also.6. in view of aforesaid discussion, i find absolutely no merit in the submission of learned counsel for the petitioner that the impugned assessment which is made subject-matter of this writ petition be quashed solely relying upon the decision of board of revenue rendered for the period from august 1, 1984 to july 31 1985.7. as observed supra, in the present petition, the challenge is directly to an order of assessment dated february 11, 1993 (annexure p10) which relates to the period from august 1, 1989 to july 31, 1990. in this case, neither there was any exercise of any suo motu revisional powers by the commissioner under section 39(1) of the act nor a direction for reassessment under section 18(7). in other words, no sooner the assessment order was passed by the assessing officer on february 11, 1993, the petitioner instead of filing a regular appeal or revision as the case may be under the act, filed this writ under articles 226 and 227 of the constitution of india.8. in my opinion, the challenge to impugned assessment order which is essentially based on factual submission is entirely misplaced and beyond the powers of this court in exercise of extraordinary powers under articles 226 and 227 of the constitution. this court is not an appellate court to examine the correctness of the factual finding recorded by the assessing officer when it held that particular sales effected by the petitioner during the period in question (august 1, 1989 to july 31, 1990) in favour of one company blow plast can be regarded as favoured sales or genuine sales. this exercise could be done only by the appellate authority under the act but not by this court.9. perusal of petition and the grounds taken therein do not make out any case for quashment of assessment order. a plea of article 14 in para 7 of the petition has absolutely no basis. the impugned order of assessment cannot be set aside on the plea of article 14.10. as observed supra during argument, the challenge was only on the ground of order passed by the board of revenue which has been negatived by this court.11. accordingly and in view of the discussion aforesaid, the petition has no merit. it is dismissed.no costs. security amount, if deposited by the petitioner, be refunded as per rules.