Madras High Court
M/S.General Traders (Chennai) ... vs The Commercial Tax Officer on 22 September, 2021
W.A.Nos.2374 to 2376 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
W.A.Nos.2374 to 2376 of 2021
and
C.M.P.Nos.15160, 15163 & 15171 of 2021
M/s.General Traders (Chennai) Pvt. Ltd.,
Now Known as G.T. India Pvt. Ltd.,
Represented by its Director, Arvind Kumar,
Now at No.249, Sydenhams Road,
Chennai – 600 003. ... Appellant
in all appeals
Vs.
The Commercial Tax Officer,
Sowcarpet-II Assessment Circle,
N.S.C.Bose Road,
Now Sowcarpet Assessment Year,
Chennai. ... Respondent
in all appeals
Common Prayer : Writ Appeals in W.A.Nos.2374, 2375 & 2376 filed under
Clause 15 of the Letters Patent to set aside the order, dated 26.07.2021,
passed in W.P.Nos.14522, 14523 & 14521 of 2014 respectively.
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W.A.Nos.2374 to 2376 of 2021
For Appellant : Ms.C.Rekha Kumari
in all the appeals
For Respondent : Mr.M.Venkateswaran
Government Counsel
in all appeals
COMMON JUDGMENT
(Judgment was delivered by T.S. SIVAGNANAM, J.)
These Writ Appeals have been filed by a dealer, registered under the
provisions of erstwhile Tamil Nadu Value Added Tax Act, 2006 (“TNVAT
Act” for brevity), challenging the common order passed in W.P.Nos.14521 to
14523 of 2014, dated 26.07.2021.
2.The appellant filed the writ petitions challenging the Assessment
Orders passed by the respondent, dated 08.05.2014, contending that the
product dealt with by them is classifiable under Entry 1 of Part B of First
Schedule of the TNVAT Act. The appellant placed reliance on the decision
in a batch of cases in M/s.Ajinomoto India Pvt. Ltd. & TVL.Sha Kanthilal
Jayanthilal v. The State of Tamil Nadu and others [W.P.Nos.28794 to
28796 of 2010 and W.P.No.11461 of 2011 dated 27.11.2019], wherein, the
appellant therein also sought for an identical prayer and those writ petitions
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W.A.Nos.2374 to 2376 of 2021
were allowed. Therefore, the appellant contended before the learned Single
Bench that the issue involved is squarely covered by the said decision.
3.The learned Single Bench has recorded the submission of the learned
counsel for the appellant in Para No.2 of the impugned order, but taken note
of the submission of the learned Government Counsel that, as against the
said common order dated 27.11.2019, the State has preferred appeals before
the Division Bench. This submission has also been recorded and the learned
Writ Court observed that, when the State has preferred appeal, it is not
preferable to follow the said order in a routine manner. We find that, in Para
No.3 of the order passed in the writ petition, though the learned Writ Court
makes such an observation, the learned Government Counsel has not been
able to point out as to what is the Writ Appeal number and whether the
appeal has been admitted and whether any interim orders have been granted.
After recording that it is not preferable to follow the order passed in the
batch of cases, as the State has preferred appeal before the Division Bench of
this Court, the learned Writ Court had directed the appellant to avail the
alternate remedy provided under the TNVAT Act by approaching the First
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W.A.Nos.2374 to 2376 of 2021
Appellate Authority. Aggrieved by the said order, the appellant is before us.
4.We have heard Ms.C.Rekha Kumari, learned counsel for the
appellant and Mr.M.Venkateswaran, learned Government Counsel appearing
for the respondent.
5.On a query raised by the Court, the learned Government Counsel, on
instructions from the officer who is present in the Court, would submit that it
is true that the State has preferred Writ Appeals against the common order,
dated 27.11.2019, in the batch of cases in M/s.Ajinomoto India Pvt. Ltd.
(supra) and the appeals are yet to be numbered and they are still in SR stage,
in W.A.SR.Nos.41371 to 41374 of 2021.
6.As on date, the order passed in M/s.Ajinomoto India Pvt. Ltd. holds
the field and if it is so, the product has to be classified under Entry 1 of Part
B of First Schedule of the TNVAT Act, unless and until the order passed in
the writ petitions is modified, varied or set aside. That apart, when the
learned Single Bench has held in favour of the appellant with regard to the
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classification of the goods, in the opinion of this Court, it would be a futile
exercise to relegate the appellant to file an appeal before the First Appellate
Authority, as the First Appellate Authority will not be in a position to render
any opinion contrary to the orders passed in the batch of cases.
7.Therefore, there are two options available, one is to restore the writ
petitions to the file of the learned Single Bench and keep the matter pending
awaiting the decision of the Hon'ble Division Bench and the other option is
to allow the Writ Appeals and consequently, set aside the order passed in the
writ petitions and allow the writ petitions following the order in
M/s.Ajinomoto India Pvt. Ltd. In our considered view, the first of the two
options would be better, since the State has preferred appeals and the appeals
are yet to be numbered.
8.For the above reasons, these Writ Appeals are allowed and the order
passed in the writ petitions is set aside. Consequently, the writ petitions are
restored to the file of the learned Single Bench of this Court and the interim
order, which was granted in favour of the appellant/writ petitioner, stands
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restored and the impugned Assessment Orders shall remain stayed until the
disposal of the writ petitions. No costs. Connected Miscellaneous Petitions
are closed.
9.Registry is directed to list the writ petitions along with
W.A.SR.Nos.41371 to 41374 of 2021.
(T.S.S., J.) (S.S.K., J.)
22.09.2021
mkn
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
The Commercial Tax Officer,
Sowcarpet-II Assessment Circle,
N.S.C.Bose Road,
Now Sowcarpet Assessment Year,
Chennai.
T.S. SIVAGNANAM, J.
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W.A.Nos.2374 to 2376 of 2021
and
SATHI KUMAR SUKUMARA KURUP, J.
mkn
W.A.Nos.2374 to 2376 of 2021
22.09.2021
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