Case Law Details
Assistant Commissioner Vs Glaxo Smith Kline Consumer Health Care Limited (Supreme Court
Conclusion: Power of Supreme Court & High Court under Articles 142 and 226 to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation however the statutory period prescribed for redressal of the grievance could not be disregarded and a writ petition could not be entertained as doing so would be in the teeth of the principle that the Court could not issue a writ which was inconsistent with the legislative intent. That would render the legislative scheme and intention behind the statutory provision otiose. No finding had been recorded by the High Court against the writ petition filed by assessee that it was a case of violation of principles of natural justice or non-compliance of statutory requirements in any manner, therefore, writ petition filed against foreclosure of same by law of limitation was not sustainable.
Held: Assessee was engaged in the business of manufacturing and sale of Horlicks, Boost, Biscuits, Ghee, Ayurvedic Medicines etc. Assistant Commissioner had called upon assessee to produce books of accounts for finalization of assessment. Assessee produced declaration in Form “F” in support of its claim that certain transactions were inter‑State transfers. Final assessment order came to be passed by the Assistant Commissioner on 21.6.2017, raising demand of Rs.76,73,197/- on the finding that assessee had failed to submit Form “F” to the tune of the turnover reported in the Central Sales Tax (CST) return. This assessment order was duly served on 22.6.2017. Assessee did not file appeal against this assessment order within the statutory period. Instead, amount equivalent to 12.5% of the demand was deposited on 12.9.2017. Assessee then filed an application under Rule 60 of the Andhra Pradesh Value Added Tax Rules, 20055, highlighting the error made in raising the demand based on incorrect turnover. This application came to be rejected by the Assistant Commissioner, Appellate Deputy Commissioner of Commercial Taxes, Appellate Deputy Commissioner and the same was dismissed on 25.10.2018 being barred by limitation and also because no sufficient cause was made out. Assessee then filed writ petition before High Court solely for quashing and setting aside of assessment order dated 21.6.2017 for tax period – April, 2013 to March, 2014 (CST) being contrary to law, without jurisdiction and in violation of principles of natural justice to the extent of levy on the Branch Transfer turnovers and to direct the Assistant Commissioner (CT) to re-do the assessment and reckon the correct Branch Transfer turnover and grant exemption on the basis of Form “F”. High Court allowed the writ petition and the order passed by the Assistant Commissioner, dated 21.6.2017 had been quashed and set aside. It was held that power of Supreme Court & High Court under Articles 142 and 226 to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation. The statutory period prescribed for redressal of the grievance could not be disregarded and a writ petition entertained. Doing so would be in the teeth of the principle that the Court could not issue a writ which was inconsistent with the legislative intent. That would render the legislative scheme and intention behind the statutory provision otiose. The date on which assessee became aware about the order was not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 without filing an appeal and without any demur – after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Assessee in the writ petition had averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examined the cause set out by assessee and concluded that the same was unsubstantiated by assessee. That finding had not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that assessee was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that assessee had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason could have no bearing on the justification for non-filing of the appeal within the statutory period. Pertinently, no finding had been recorded by the High Court that it was a case of violation of principles of natural justice or non-compliance of statutory requirements in any manner. Since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by assessee only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to assessee at all. Therefore, High Court ought not to have entertained the subject writ petition filed by assessee herein.
FULL TEXT OF THE SUPREME COURT JUDGEMENT
1. Leave granted.
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