M/s.Hindustan Construction Company Ltd v. V,North Mada Street, Thiruvottiyur, Chennai-19

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 01-03-2011CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.893 of 2011andM.P.Nos.1 and 2 of 2011M/s.Hindustan Construction Company Ltd.,rep.by its authorized signatory Meyyappan Soodamani, Ennore Port, Chennai-600 120 .. Petitioner. Versus1.The Joint Commissioner (CT), Chennai (Central) Division, Greams Road Chennai-600 006.2.The Assistant Commissioner (CT), Thiruvottiyur Assessment Circle, 39/7V,North Mada Street, Thiruvottiyur, Chennai-19... RespondentsPrayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari to call for the recordsof the First Respondent in his proceedings in RC 11668/08/B4 /TNGST/1101673/2003-04 dated 28.08.09 and consequential proceedings inR.C.No.11668/2008/B4 dated 09.11.2010 and quash the same as illegal. For Petitioner: Mr.S.RamanathanFor Respondent : Mr.K.Radhakrishnan, Government Advocate(Tax)

O R D E RHeard the learned counsel appearing for the petitioner and thelearned Government Advocate(Tax)appearing on behalf of therespondent. 2. The main contention of the learned counsel appearing on behalfof the petitioner is that, while an Appeal is pending, under Section36 of the Tamil Nadu General Sales Tax Act, 1959, before the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu State Appellate Tribunal, Chennai, in S.T.A.No.290 of 2008, itwould not be open to the first respondent to pass the impugnedproceedings, under Section 32(2) of the Tamil Nadu General Sales TaxAct 1959, especially, when it is an admitted fact that the petitionerhas filed an appeal challenging the order of the second respondent, before the Appellate Deputy Commissioner (CT),VI,Chennai. As such theimpugned proceedings of the first respondent is against theprovisions of Section 32(2) B of the Act. 3. The learned counsel for the petitioner had relied on adecision of the supreme Court, in the State of Tamil Nadu Vs.Jeevanlal Ltd., reported in 103 STC Page 99, wherein it had been heldas follows: "Once the order of the AppellateAssistant Commissioner is made the subjectmatter of appeal before the AppellateTribunal by the assessee who is aggrieved byonly a part of such order the Board ofrevenue cannot exercise its revisionalJurisdiction against the remaining part ofthat very order of the Appellate AssistantCommissioner which is infavour of theassessee and against the Revenue".4.He had also relied on a decision of this Court, in The DeputyCommissioner of Commercial Taxes, Tiruchirapalli Vs.

S.Gnanapatham, reported in 42 STC Page 262, wherein, it had been held as follows: "We think the Tribunal was right indenying to the Deputy Commissioner the rightto interfere in suo motu revision when theorder of the Sales Tax Officer has been thesubject-matter of appeal. This is clearfrom the wording of section 32(2)(b)of the Tamil Nadu General Sales Tax Act, 1959,which reads as follows: ".....(2) The Deputy Commissioner shallnot pass any order under sub-section (1),if-.................(b) the order has been made the subjectof an appeal to the Appellate AssistantCommissioner or the Appellate Tribunal, orof a revision in the High Court;..."The order has been made the subject-matter of appeal to the Appellate AssistantCommissioner. The question is not whetherevery part of that order has been thesubject matter of appeal. Such a contentionis not justified by the wording of the Section. The Tribunal was right in saying https://hcservices.ecourts.gov.in/hcservices/ that the Deputy Commissioner interferedwithout jurisdiction.

We dismiss this tax revision case. " 5. In such circumstances, the first respondent cannot invoke the Special powers, under Section 32 of the Tamil Nadu General Sales TaxAct, 1959, on the ground that the earlier assessment order isprejudicial to the interest of the revenue. However, the learnedcounsel appearing for the petitioner had submitted that as perSection 36(3) of the Tamil Nadu General Sales Tax, 1959, "in disposing of an appeal, the AppellateTribunal may, after giving the appellant areasonable opportunity of being heard andfor sufficient reasons to be recorded inwriting. " 6. No counter affidavit has been filed by the respondents, tilldate. The learned counsel appearing on behalf of the respondents hadsubmitted that the petitioner had not raised the grounds, which hasbeen relied on before this Court, in the present Writ Petition, whenthe matter was pending before the first respondent.