Madras High Court
M/S. Saint Gobain Glass India Ltd vs The Appellate Joint Commissioner ... on 22 September, 2021
Writ Appeal No.2355 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.09.2021
CORAM :
THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Writ Appeal No.2355 of 2021
and
C.M.P.No.15003 of 2021
M/s. Saint Gobain Glass India Ltd,
(Now known as Saint. Gobin India Private Ltd)
Rep. by Mr.R.Parthasarathy,
Plot A-1, SIPCOT Industrial Park,
Irrungattukottai,
Sriperumbudur,
Kancheepuram – 602105. ... Appellant
Vs.
1.The Appellate Joint Commissioner (CT)
CT Annexe Building, III Floor,
Greams Road,
Chennai – 600 006.
2.The Deputy Commissioner (CT)-IV,
Large Taxpayers Unit,
No.34(Old No. 123),
“Dugar Towers”,
5th Floor, Marshal Road,
Egmore, Chennai – 600 008. ... Respondents
Page 1/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
Prayer :Writ Appeal filed under Clause 15 of the Letter Patent, against the
order dated 09.07.2021 made in W.P.No.3206 of 2014.
For Appellant : Mr.K.Vaitheeswaran
For Respondents : Mr.M.Venkateswaran
Government Advocate
JUDGMENT
(Judgment was delivered by T.S. SIVAGNANAM, J.)
This Writ Appeal filed by the writ petitioner is directed against the
order, dated 09.07.2021, in W.P.No.3206 of 2014.
2.The appellant filed the writ petition, challenging the order passed by
the 1st respondent, the Appellate Joint Commissioner (CT), Chennai, dated
29.11.2013, in an appeal filed in AP.No.26 of 2013 against the Assessment
Order, dated 29.03.2013, for the Assessment Year 2009-10, under Section
9(2) of the Central Sales Tax Act, 1956 (“CST Act” for brevity) read with
Section 22(2) of the Tamil Nadu Value Added Tax Act, 2006 (“TNVAT Act”
for brevity). The writ petition was disposed of by issuing directions to the
Page 2/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
appellant to avail the alternate remedy under the provisions of the CST Act by
approaching the Tamil Nadu Sales Tax Appellate Tribunal.
3.The appellant has filed this Writ Appeal contending that the learned
Writ Court ought to have exercised jurisdiction and interfered with the order
passed by the 1st respondent, dated 29.11.2013, as the 1st respondent has
exceeded his jurisdiction in exercising his power as the Appellate Authority. It
is further pointed out by the learned counsel for the appellant that, in the
appellant's case for the Assessment Year 2008-09, the Appellate Authority
passed identical orders in A.P.No.39 of 2012, which was challenged in
W.P.No.18071 of 2013, which was dismissed by order dated 29.03.2021 and
as against which, the appellant filed W.A.No.2139 of 2021, which was
allowed on 01.09.2021 and the said judgment would squarely apply to the case
on hand.
4.We have heard Mr.M.Venkateswaran, learned Government Counsel,
appearing for the respondents.
Page 3/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
5.On going through the order impugned in the writ petition as well as
the judgment in W.A.No.2139 of 2021, we have no hesitation to hold that the
issue involved in this appeal is squarely covered by the judgment in
W.A.No.2139 of 2021. The legal issue which was decided in the said appeal
was whether, the First Appellate Authority has power to change the character
of the transaction and while deciding the appeal in terms of Section 52 of the
TNVAT Act, he has power to confirm, reduce, enhance or annul the
assessment or the penalty or both; set aside the assessment and direct the
Assessing Officer to make a fresh assessment or pass such other orders as he
may think fit; or in the case of any other order, confirm, cancel, or vary such
order. Taking note of the said provisions, it was held that the Appellate
Authority cannot travel beyond the subject matter of assessment. The
operative portion of the judgment reads as follows :
“3.The short ground on which the writ petition was filed
challenging the order passed by the First Appellate Authority is
by contending that the First Appellate Authority, though
accepted the stand of the appellant that freight charges cannot
be added to the value of the sale, came to the conclusion that
the transaction, which according to the appellant, was an
Page 4/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
interstate sale should be treated as a local sale. The appellant
contended that this finding of the First Appellate Authority is
wholly without jurisdiction as he has no power to change the
character of the transaction and while deciding the appeal in
terms of Section 52 of the TNVAT Act, the First Appellate
Authority can either confirm, reduce, enhance or annul the
assessment or the penalty or both; set aside the assessment and
direct the Assessing Officer to make a fresh assessment after
such further inquiry as may be directed; or pass such other
orders as he may think fit; or in the case of any other order,
confirm, cancel or vary such order. The appellant contended
that in terms of Section 52(3) of the TNVAT Act, the powers
exercisable by the Appellate Authority qua the Assessment
Order cannot travel beyond the same. The learned Single
Bench did not agree with the appellant by pointing out that in
terms of Clause (b) of Section 52(3), the Appellate Authority in
case of any other order, confirm, cancel or vary such order. In
our considered view, Clause (b) cannot read in isolation, but it
is relatable to Clause (a) in Section 52(3). The Appellate
Authority, while considering an appeal filed by
Assessee/Dealer does not exercise his suo motu power, which is
exercisable in terms of the provisions, by an Officer of the Joint
Commissioner. The procedure for such suo motu revision are
entirely different and distinct for normal appellate powers
conferred on the Appellate Joint Commissioner. Therefore,
Page 5/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
while reading Clause (a) and (b) of Section 52(3), a
harmonious construction has to be given, bearing in mind the
legal principle that the Appellate Authority cannot travel
beyond the subject matter of the assessment. The Appellate
Authority, in the case on hand has precisely done so and while
accepting the case of the appellant that the freight charges
cannot be included in the value of the sale transaction,
erroneously came to the conclusion that the transaction should
be treated as a legal sale which was neither the case of the
Assessee nor has decided by the Assessing Officer. In this
regard, we are guided by the decision of the Hon-ble Supreme
Court in the case of Commissioner of Income Tax (Central),
Calcutta Vs. Rai Bahadur Hardutroy Motilal Chamaria, AIR
1968 SC 153, wherein the Court held that the power of
enhancement conferred under Section 31(3) of the Income Tax
Act is restricted to the subject matter of assessment or the
sources of income which have been considered expressly or by
clear implication by the Income Tax Officer from the point of
view of the taxability of the assessee.
4.In the instant case, the first respondent, the Appellate
Authority has ignored the settled legal principle and issued
directions to the Assessing Officer to treat the transaction as a
local sale, for which, he had no jurisdiction to do so. Thus, we
are of the view that the correct interpretation to be given to
Page 6/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
clause (b) of Section 52(3) is to mean that the power is
exercisable in the case of any other order which can be
confirmed, canceled or varied, provided it does not change the
character of the transaction nor the subject matter which was
the issue before the Assessing Officer. Thus, the order passed
by the first respondent / Appellate Authority dated 17.05.2013
in the writ petition is without jurisdiction.
5.In the result, the Writ Appeal is allowed and the order
passed in the writ petition is set aside and consequently, the
writ petition is allowed and the order passed by the first
respondent dated 17.05.2013 in A.P.No.39 of 2012 is quashed.
No costs. Consequently, connected miscellaneous petition is
closed.”
As pointed out above, the above decision in the appellant's own case would
squarely cover the legal issue which has been raised before us.
6.Thus, by applying the said decision, this Writ Appeal is allowed and
the order passed in the writ petition is set aside. Consequently, the writ
petition is allowed and the order passed by the 1st respondent, dated
29.11.2013, is quashed. No costs. Consequently, connected Miscellaneous
Petition is closed.
Page 7/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
(T.S.S., J.) (S.S.K., J.)
22.09.2021
mkn
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
1.The Appellate Joint Commissioner (CT)
CT Annexe Building, III Floor,
Greams Road,
Chennai – 600 006.
2.The Deputy Commissioner (CT)-IV,
Large Taxpayers Unit,
No.34(Old No. 123),
“Dugar Towers”,
5th Floor, Marshal Road,
Egmore, Chennai – 600 008.
Page 8/9
http://www.judis.nic.in
Writ Appeal No.2355 of 2021
T.S. SIVAGNANAM, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
mkn
Writ Appeal No.2355 of 2021
22.09.2021
Page 9/9
http://www.judis.nic.in
