Bhagwati Traders vs Commissioner Of Sales Tax And Anr.
2006 Latest Caselaw 1066 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. With the consent of the parties this writ petition has been taken up for final disposal. Undisputed facts of the case are that the petitioner/dealer was granted registration under Delhi Sales Tax and Central Sales Tax with effect from 11.5.1988. The registration was cancelled on 29.12.1989. An ex parte assessment order dated 7.3.1994 was passed by Assessing Officer against the petitioner holding him liable to pay sales Tax under Delhi Sales Tax to the tune of Rs. 1,50,97,500/- and under Central Sales Tax a sum of Rs. 9,90,000/-. A penalty of Rs. 2000/-was imposed in each case for not filing the returns. The assessment order was passed on the basis of 'best judgment'. Petitioner had got issued 401 ST-35 forms 148 ST-1 forms 4F forms 5 C forms during the period of registration. The Assessing Officer, while passing assessment order on the basis of 'best judgment', considered the full value of these forms and assessed gross turn over of the petitioner at Rs. 30,29,40,000/- for Delhi Sales Tax Act and Rs. 9,90,000/- for Central Sales Tax Act, taking the value of each ST-1/ST-35 forms at Rs. 5,00,000/- and C and F forms at Rs. 1,00,000/-. After this ex parte 'best judgment' assessment order, petitioner filed a complaint with the anti corruption department. His plea was that he had deposited duly utilized ST-1 and 35 forms with the assessment Officer, but the Assessment Officer did not take the forms into account and ST-I/35, F and C forms were still lying in Assessing Officer's almirah. A raid was conducted by anti corruption officials at the office of the Assessment Officer on 28.3.1994 and a large number of ST-I, ST-35 and other forms belonging to the petitioner were recovered by the anti corruption department from almirah of Assessing Officer. A panchnama of the recoveries was prepared. After recovery of ST-1/35 and C and F forms from almirah of Assessing Officer, the petitioner challenged the ex parte assessment order by way of filing an appeal. However, being unable to satisfy the condition of pre deposit, he withdrew the appeal and field a revision as per law. His revision was disposed of by the Additional Commissioner, Sales Tax, vide order dated 29.4.2005. Against this order he approached Appellate Tribunal, Value Added Tax, Delhi in appeal. The Appellate Tribunal held that no appeal was maintainable against the order passed in revision in view of the proviso to Sub-section (1) of Section 43 of Delhi Sales Tax Act, 1975. Right to appeal was strictly a statutory right and since appeal was specifically barred against the order passed in revision, no appeal was maintainable. Present writ petition has been filed by the petitioner, after the rejection of appeal by the Tribunal, praying for writ of certiorari for quashing/setting aside the order dated 29.4.2005 passed by the Additional Commissioner-III, Sales Tax, New Delhi and also for quashing order dated 16.11.2005 passed by the Appellate Tribunal, Value Added Tax, New Delhi. A prayer is also made for issuance of mandamus directing the respondent to consider the statutory forms submitted by the assessed for the assessment year 1989-1990.

2. We have heard the counsel for parties and perused the record.

3. As far as the maintainability of appeal before Tribunal is concerned, Section 43(1) of the Delhi Sales Tax Act is very clear. Proviso to Section 43(1) makes it clear that the appeal is not maintainable against the orders under Section 44 or an order passed under Section 47 of the Act. The Tribunal was, therefore, right in holding that appeal against the order of the Commissioner passed in exercise of power of revision under Section 47 was not maintainable.

4. However, the petitioner has also challenged the order dated 29.4.2005 passed by Addl. Commissioner in this writ petition on the ground of non exercise of jurisdiction by the Commissioner and on the ground that Commissioner was biased against him in view of the raid of anti corruption department on one of his subordinate officer. It is contended that Addl. Commissioner passed impugned order, rejecting the statutory forms on extraneous consideration.

5. It is well settled that High Court can, under Article 226 of the Constitution, interefere, if the action of an administrative authority or Tribunal is unfair or unreasonable or it defies the reasons. Where an administrative or quasi judicial authority acts in violation of the rules of natural justice, High Court can set aside the said action. A perusal of the Addl.Commissioner's order would show that Addl. Commissioner in this case totally misdirected himself. The revision was filed before the Commissioner against the ex parte order of the Assessing Officer since the Assessing Officer had deliberately not considered the ST-1, ST-35 and other forms which were submitted during hearing, by the petitioner with the Assessing Authority. While these forms kept lying in the almirah of the Assessing Authority, he gave 'best judgment' assessment ex parte holding that no forms had been filed before him. Admittedly forms were recovered from the Assessing Authority in the raid of the anti corruption department. Addl. Commissioner instead of considering the effect of ST-1/35 and other forms which were recovered from almirah of Assessing Authority, on the turnover & tax and to decide if the assessed was entitled to get the benefit of these forms or not, entered into an inquiry whether or not these forms were recovered by anti corruption department from the almirah of the Assessing Authority or if these forms were planted there by petitioner. Commissioner was not supposed to hold an inquiry into the act of the anti corruption department or the petitioner regarding raid, neither he had jurisdiction to come to a conclusion whether the recovery of forms was rightly made from the Assessing Authority or not. It is noted by Addl. Commissioner in his order that he had received a representation from the Assessing Authority, after the raid and recovery of these forms, that the forms were sneaked into his almirah by the assessed. The Commissioner believed and upheld this version of the Assessing Officer and came to a conclusion that these forms could not have been recovered from the almirah of the Assessing Authority.

6. We consider that the Addl. Commissioner had grossly erred in assuming jurisdiction of holding an inquiry into the raid and entered into a wrong field. His conclusion that the forms recovered from almirah of Assessing Officer were sneaked in his almirah after completion of assessment order, clandestinely, cannot stand the scrutiny of law. He had no jurisdiction to determine this fact. Since ST-1/35 and other forms prima facie, were recovered from the almirah of the Assessing Officer and the petitioner had filed an affidavit to the effect that these forms were submitted by him to the Assessing Authority and the Assessing Authority, for ulterior motive, did not consider these forms and did not give him the benefit, the Addl. Commissioner was supposed to take into account the forms and supposed to exercise his power of revision in assessing turnover & tax payable and if assessed was entitled for benefit of these forms or not? However, a bare reading of the order of Addl. Commissioner not only reflects his bias but shows that he was out to bail out his subordinate in the case of raid by Anti Corruption Department. Addl. Commissioner was supposed to act fairly & without prejudice. His duty was not to pass a verdict in the matter of raid in favor of his departmental colleague who was seemingly involved in corruption, but to consider the assessment order in the light of ST-1/35 forms and other forms which were available to him. These forms could be considered even at revision stage by him, if the forms were otherwise in order. But in his zeal to bail out his colleague, he acted with the motive of supporting the version of Assessing Authority.

7. We, therefore, set aside the order dated 29.4.2005 of the Additional Commissioner-III and remand back this matter for passing an order on the merit of the assessment order and not about the merits of the raid and recovery of forms. He shall give due consideration to the ST-1/35 and other forms recovered during the raid and pass an appropriate order as per law.

8. The writ petition stands disposed of. No order as to costs.