M/S.VASANTHI AGNECIES v. THE COMMERCIAL TAX OFFICER II COMMERCIAL TAX DEPARTMENT PONDIC

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.7.2011CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.14438 of 2008, W.P.No.26677 of 2008,W.P.No.5299 of 2009, & W.P.Nos.13995,13996,13997and 13998 of 2008W.P.No.14438 of 2008: M/S.VASANTHI AGNECIES THROUGH ITS AUTHORISED SIGNATORY PALANIAPPAN NO.1, E.C.R. ROAD, MUDALIARPET, THENGAITHITTU, PUDUCHERRY. ..Petitioner in WP 14438/08, 26677/08 Vs1 THE COMMERCIAL TAX OFFICER II COMMERCIAL TAX DEPARTMENT PONDICHERRY.2 THE APPELLATE ASSISTANT COMMISSIONER COMMERCIAL TAXES DEPARTMENT PONDICHERTY. ..Respondents in WP 14438/08, 26677/08WP NO.5299 of 2009S.KATHIRESAN ..PETITIONER -VS-1.THE ADDITIONAL DEPUTY COMMERCIAL TAX OFFICER II,COMMERCIAL TAX DEPARTMENT, PUDUCHERRY2.THE APPELLATE ASSISTANT COMMISSIONER,COMMERCIAL TAXES DEPARTMENT, PUDUCHERRY https://hcservices.ecourts.gov.in/hcservices/ 3 THE UNION TERRITORY OF PUDUCHERRY REPRESENTED BY ITS SECRETARY TO GOVERNMENT COMMERCIAL TAXES DEPARTMENT PUDUCHERRY. ..RESPONDENTSWP Nos.13995 TO 13998 of 2008M.GANESAN ..PETITIONER -VS-1 THE COMMERCIAL TAX OFFICER II COMMERCIAL TAX DEPARTMENT PONDICHERRY.2 THE APPELLATE ASSISTANT COMMISSIONER COMMERCIAL TAXES DEPARTMENT PONDICHERTY. ..RESPONDENTS Prayer: Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of declaration declaring thesecond proviso to sub Section 1 of Section 34 of Pondicherry GeneralSales Tax Act [as amended by Amendment Act 4 of 2000] in so far as itdemands 25% of the difference of the tax assessed by the assessingauthority and the tax admitted by the appellant as a conditionprecedent for preferring appeal under the said provision, asarbitrary, onerous, oppressive and invalid (in WP No.26677 of 2008)and consequently declare the order dated 2.6.2008 of the 2ndrespondent in Proceeding in Ref.No.1056 to 1061/APRR/2008/AAC issuedunder the said provision as illegal and consequently direct the 2ndrespondent to entertain the said appeals of the petitioner withoutinsisting the said 25% amount. (in WP No.14438 of 2008)Prayer : Petition filed under Article 226 of the Constitutionof India praying for the issue of a Writ of declaration declaringsecond proviso to sub section 1 of Section 34 of the PondicherryGeneral Sales Tax Act (as amended by Amendment Act 4 of 2000) in sofar as it demands 25% of the difference of the tax assessed by theassessing authority and the tax admitted by the appellant as acondition precedent for preferring appeal under the said provisionas arbitrary, onerous, oppressive, unconstitutional and invalid andconsequently direct the second respondent to entertain the saidappeals of the petitioner without insisting the said 25% amount. (inWP No.5299 of 2009)Prayer : Petition filed under Article 226 of the Constitutionof India praying for the issue of a Writ of declaration declaringsecond proviso to sub section 1 of Section 34 of Pondicherry GeneralSales Tax Act 1967 as amended by Amendment Act 4 of 2000) in so far https://hcservices.ecourts.gov.in/hcservices/ as it demand 25% of the difference of the tax assessed by theassessing authority and tax admitted by the appellant as a conditionprecedent for preferring appeal under the said provision asarbitrary, onerous, oppressive and invalid and consequently declarethe order dated 12.05.2008, of the 2nd respondent in proceedingsin Ref. Nos.6,9,8,7/APRR/2008/AAC, issued uner the said provision asillegal and consequently direct the 2nd respondent to entertain theappeals of the petitioners without insisting the said 25% amount. (inWP Nos.13995 to 13998/08)W.P.No.14438 & 26677 of 2008and W.P.Nos.13995 to 13998 of 2008:For petitioner: Mr.V.R.ShanmuganathanFor respondent : Mr.T.P.Manoharan Special Government Pleader (Pondy)W.P.No.5299 of 2009:For petitioner: Mr.S.Raveekumar For respondent : Mr.T.P.Manoharan Special Government Pleader (Pondy)C O M M O N O R D E RSince, the issues involved in all the writ petitions are similarin nature, these writ petitions are taken up together and a commonorder is being passed. 2. The above writ petitions had been filed praying for writs ofdeclaration declaring the second proviso to sub-section (1) ofSection 34 of the Pondicherry General Sales Tax Act, 1967, as amendedby the Amendment Act 4 of 2000, insofar as it demands 25% of thedifference of the tax assessed by the assessing authority and the taxadmitted by the appellants, as a condition precedent for preferringan appeal under the said provisions, as arbitrary and invalid. 3. The main contention of the learned counsels appearing for thepetitioners is that the amendment in question, introduced in thesecond proviso to sub-section (1) of Section 34 of the PondicherryGeneral Sales Tax Act, 1967, takes away the discretion vested withthe appellate authority concerned to issue appropriate directions, ashe thinks fit, with regard to the payment of tax by the appellants,before the disposal of the appeals. 4. Per contra, the learned Special Government Pleader appearingon behalf of the respondents had submitted that a number of ordershad been passed by this Court, in similar matters, dismissing the https://hcservices.ecourts.gov.in/hcservices/ writ petitions by holding that the amendment in question is valid.One of such orders had been passed by this Court, on 30.4.2009, inW.P.Nos.26676, 43880 and 43881 and 3185 of 2009, (M/S.VASANTHIAGENCIES, THROUGH ITS AUTHORISED SIGNATORY, PALANIAPPAN AND OTHERSVs. THE COMMERCIAL TAX OFFICER-II, COMMERCIAL TAX DEPARTMENT,PUDUCHERRY AND ANOTHER), based on the decision, reported in TEHARALIINDUSTRIES CASE (2006 (147) STC 249) and in ROYAL INSULATION PRIVATELIMITED CASE (2006 (147) STC 246). 5. The learned counsel had further submitted that there are nocontradictions between the existing provisions, in Section 34 of thePondicherry General Sales Tax Act, 1967, and the newly introducedamendment, by the Amendment Act 4 of 2000. The discretion vested withthe appellate authority, with regard to the payment of tax by theappellants had not been diluted or taken away, as alleged by thepetitioners. The amendment introduced by way of the Amendment Act 4of 2000 is to be read along with the existing provisions of Section34 of the Pondicherry General Sales Tax Act, 1967. 6. He had further submitted that a number of orders had beenpassed by the various Division Benches of this Court holding that theamendment introduced in Section 34 of the Pondicherry General SalesTax Act, 1959, is valid. 7. The learned counsels appearing on behalf of the petitionershad submitted that the observations made by the Supreme Court in itsdecision, in MARDIA CHEMICALS LTD ETC., Vs. UNION OF INDIA AND ORSETC., (2004 (3) SUPREME 243), with regard to the validity of thespecial provisions of law, as a speedier legal method to recover thedues of the banks and other financial institutions, would not beapplicable to the present case. 8. The learned Special Government Pleader appearing on behalf ofthe respondents had relied on the decision of this Court, inK.M.CORPORATION AND ANOTHER Vs. STATE OF TAMIL NADU AND OTHERS (2008)11 VST 782 (MAD)., wherein, the amendment introduced to Section 31 ofthe Tamil Nadu General Sales Tax Act, 1959, by the Tamil Nadu Act 14of the 1999, which is similar to the amendment introduced to Section34 of the Pondicherry General Sales Tax Act 1967, had been held to bevalid. 9. In view of the submissions made by the learned counselsappearing on behalf of the parties concerned and in view of thedecisions cited supra, this Court is of the considered view that theamendment introduced in Section 34 of the Pondicherry General SalesTax Act, 1967, by the amendment Act 4 of 2000, cannot be held to beinvalid. 10. It cannot be said that the amendment in question contravenesthe existing provisions of law, by taking away the discretion vested https://hcservices.ecourts.gov.in/hcservices/ with the appellate authority, under Section 34 of the PondicherryGeneral Sales Tax Act, 1967, with regard to the payment of tax by theappellants concerned. 11. The petitioners have not been in a position to show that theamendment introduced, in section 34 of the Pondicherry General SalesTax Act, 1967, is ultra vires and unconstitutional. Further, a numberof orders had already been passed by this Court holding that theamendment in question is valid in the eye of law. 12. In such circumstances, this Court finds it appropriate todismiss the writ petitions, as they are devoid of merits. Hence, thewrit petitions are dismissed. No costs. Connected M.P.Nos.1,1,1,1,1of 2008 and M.P.No.1 of 2009 are closed. Sd/ Deputy Registrar/true copy/Sub Asst.RegistrarlanTo:1 THE COMMERCIAL TAX OFFICER II COMMERCIAL TAX DEPARTMENT, PONDICHERRY.2 THE APPELLATE ASSISTANT COMMISSIONER COMMERCIAL TAXES DEPARTMENT, PONDICHERTY. 2 ccs To Mr.V.R.Shanmuganathan, Advocate, SR.428881 cc To The Government Pleader, SR.421581 cc To Mr.M.Raveekumar, Advocate, SR.42210 order in W.P.No.14438 of 2008, W.P.No.26677 of 2008,W.P.No.5299 of 2009, & W.P.Nos.13995,13996,13997and 13998 of 2008VD (CO)RH (9.8.11)