High Court · 2012

2. Basic issue being the same, all the writ petitions were heard to gether and are being disposed of by this common order. However, since W.P.(C) No .1675/2009 was argued as the lead case, for the sake of convenience, facts of th at case are briefly noted.

3. The petitioner is a partnership firm engaged in the business of purchase and sale of wet dates (khajoor). Petitioner was a registered dealer und er the Assam General Sales Tax Act, 1993, since repealed, and presently register ed under the Assam Value Added Tax Act, 2003.

4. Case of the petitioner is that it had been submitting its return under the Assam General Sales Tax Act, 1993 (AGST Act) regularly. Petitioner pu rchases wet dates (khajoor) from dealers outside the State of Assam and sells th e same in the State of Assam in the same form without charging any tax, treating wet dates as fresh fruit. It may be mentioned that fresh fruits were exempted f rom payment of tax under the AGST Act. In the past, the department had accepted the stand that wet dates was fresh fruit and hence exempted from payment of tax. Government of India in the Ministry of Food Processing had also issued a clarif icatory note dated 12-09-1995 clarifying that wet dates were covered in the cate gory of fresh fruits.

5. For the assessment years 1998-1999 and 1999-2000, petitioner sub mitted returns showing wet dates as exempted item, being fresh fruit and hence n ot liable to tax under the AGST Act. But the assessing authority did not accept the contention of the petitioner and instead treated wet dates as a taxable item vide orders of assessment dated 31-03-2003.

6. Petitioner filed appeals against the aforesaid orders of assessm ent before the appellate authority, who by order dated 31-08-2004 set aside the assessment orders and remanded the matter back to the assessing authority for ma king fresh assessment after giving opportunity of hearing to the petitioner and also after obtaining fresh clarification from the Ministry of Food Processing, G overnment of India. On remand, the assessing authority passed fresh assessment o rders treating wet dates as preserved fruit instead of fresh fruit and levied ta x thereon. Petitioner again preferred appeals before the appellate authority, wh o by the order dated 16-07-2007 set aside the orders of assessment and remanded the matter back to the assessing authority with a direction to complete the fres h assessment by passing reasoned order after giving opportunity of hearing to th e petitioner.

7. In the meanwhile, petitioner sought for a clarification from the Ministry of Food Processing Industries, Government of India regarding wet dates . The Ministry of Food Processing Industries, Government of India in its letter dated 26-04-2006 clarified that manufacturing of fruit products is regulated und er the Food Products Order, 1955 and licence by a manufacturer of food products is mandatory. Stating that dehydrated dates manufactured from wet dates are cove red in the category of dehydrated fruits under the Food Products Order, 1955, th erefore, wet dates are treated as fresh fruits.

8. Commissioner of Taxes, Assam in reference to the direction of th e appellate authority to the assessing authority to obtain clarification from th e Ministry of Food Processing, Government of India, issued a clarificatory lette r to the assessing authority dated 27-07-2007 stating that it is already legally settled that wet dates are not fresh fruit but processed fruit on account of th e fact that they are imported from outside the country after necessary processin g. Judgment in the case of Sati Rikhaji Furtamal and another -Vs- State of Andhr a Pradesh (1992) 85 STC 1(SC) was referred to. The Commissioner, therefore, decl ared that wet dates are processed fruit and the assessing authority was requeste d to take necessary action accordingly.

9. The assessing authority thereafter, completed the assessment of the petitioner for another assessment year i.e., the assessment year 2005-2006. By the assessment order dated 27-01-2009, the assessing authority treated wet da tes as preserved fruit and taxed accordingly. The assessment was based on the cl arificatory note of the Commissioner dated 27-07-2007.

10. Aggrieved, the petitioner has filed the present writ petition ch allenging the legality and correctness of the assessment order dated 27-01-2009 for the assessment year 2005-2006 as well as the clarificatory note dated 27-07- 2007 issued by the Commissioner of Taxes, Assam.

11. Dr. A.K.Saraf, learned Senior Counsel for the petitioner submits that the Commissioner was not justified in issuing the clarification dated 27-0 7-2007 as it amounted to interfering with the exercise of quasi-judicial powers of the assessing officer who was directed by the appellate authority to pass fre sh orders of assessment. Learned Senior Counsel submits that the clarification g iven by the Commissioner amounts to unwarranted interference in the exercise of powers by the assessing authority as well as by the appellate authority. He furt her submits that the clarification goes against the settled position in the mark et where wet dates have always been treated as fresh fruit, which view also has the support of the Central Government. On reliance being placed by the Commissio ner in the case of Sati Rikhaji Furtamal, learned Senior Counsel submits that in that case the Hon’ble Supreme Court had held the findings of the Tribunal to be one of fact and, therefore, did not interfere with such finding of fact. He con tends that wet dates is not a fresh fruit as each item has to be looked into fro m the stand point of the common parlance test. He, therefore, prays for a decisi ve intervention by this Court in the palpably erroneous decision of the revenue authorities.

12. Mr. R.Dubey, learned Standing Counsel, Finance Department on the other hand, submits that the petitioner has sought to invoke the writ jurisdict ion of this Court against an order of assessment in respect of which statutory a lternative remedy of appeal is available. On merits, he, however, supports the v iew taken by the revenue authorities.

13. he parties. We have heard the submissions made by the learned counsels for t

14. The question whether wet dates (khajoor) is required to be treat ed as a fresh fruit, in which case the dealers would get benefit of tax exemptio n, or as a processed fruit, in which case it will be a taxable item, would requi re adjudication. It would be a fact finding exercise where various aspects would have to be gone into. A petition under Article 226 of the Constitution would no t be a proper forum to embark upon such an exercise.

15. At the same time, we are of the view that the clarification issu ed by the Commissioner was not really called for inasmuch as it would pre-empt t he assessing authority as well as the appellate authority from taking a fair and an independent decision in the matter. The manner in which the clarification wa s issued virtually amounts to guiding the assessing authority to pass the assess ment orders in a particular manner after the matters were remanded back by the a ppellate authority for fresh assessment by the assessing authority. Assessing pr oceedings and proceedings arising therefrom, such as appeals and revisions, unde r the taxing statutes are quasi-judicial proceedings determining the tax liabili ties of the parties. Interference in the exercise of such powers administrativel y by other authorities, howsoever higher in hierarchy, would not be justified.

16. Considering the above and in view of the fact that statutory alt ernative remedy is available, petitioner is relegated to the remedy of filing ap peal before the appellate authority against the order of assessment. If the appe al is filed within a period of 1(one) month from today, the same shall be treate d to be within time and the appellate authority shall thereafter decide the app eal in accordance with law after giving reasonable opportunity of hearing, witho ut being influenced by the clarification of the Commissioner dated 27-07-2007.

17. As already indicated, this order will cover all the other writ p etitions which are also disposed of on similar terms, except further clarifying that in those cases where assessment orders on remand have not been passed, the petitioners shall appear before the assessing authority within a period of one m onth from today, who shall thereafter proceed with the assessments in the manner as indicated in paragraph 16 above.

19. All the writ petitions are accordingly disposed of. No cost.