Fixwell Pushin Cords Pvt. Limited vs Presiding Officer, Sales Tax Tribunal and Another

Jawahar Lal Gupta, J.—Fixwell Pushin Cords Pvt. Limited, Gurgaon, has approached this Court through Civil Writ Petitions Nos. 8930 of 1988, 8863 of 1991, and Sales Tax Cases No. 18 of 1989 and 8 of 1992. The primary challenge in these cases is to the order passed by the Presiding Officer, Sales Tax Tribunal, Haryana. A few facts may be noticed.

The petitioner was registered under the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Act"), on September 9, 1983. It is averred that till the end of 1985, its factory building was under construction and in January, 1986, the unit came into production. For the three quarters commencing from January, 1986 to September, 1986, the petitioner''s advocate filed sales tax returns showing the gross turnover as "nil". On November 26, 1986, the officials of the sales tax authority visited the factory premises. Thereafter on November 28, 1986, the petitioner filed three separate returns in respect of three quarters, noticed above. It also paid the tax due on the gross turnover. On February 11, 1987, the Assessing Authority passed an order imposing a penalty of Rs. 66,320 u/s 48 of the Act in respect of the period January, 1986 to March 31, 1986. The petitioner''s appeal, etc., have been dismissed. It has filed Civil Writ Petition No. 8930 of 1988 against it. For the remaining two quarters, the order was passed by the Assessing Authority on July 4, 1987. A penalty of Rs. 4,48,000 was imposed. A copy of this order has been produced as annexure P-1 in Civil Writ Petition No. 8863 of 1991. Aggrieved of these orders, the petitioner filed an appeal before the Joint Excise and Taxation Commissioner u/s 39 of the Act. The appeal was partly accepted. The Joint Excise and Taxation Commissioner remanded the case to the Assessing Authority for fresh decision. Aggrieved by the order of remand, the petitioner approached the Sales Tax Tribunal for further relief. Vide order dated September 19, 1988 (annexure P-3) in C.W.P. No. 8930 of 1988, the Tribunal has held that imposition of the penalty against the petitioner u/s 48 of the Act was justified. As a result even the relief given by the Joint Excise and Taxation Commissioner was declined by the Tribunal. Aggrieved by the order of the Tribunal and the action of the respondents in imposing the penalty, the petitioner has approached this Court through the present writ petition.

The claim made on behalf of the petitioner has been controverted by the respondents by filing written statements in the two writ petitions. However, in the circumstances of the present case, it does not appear to be necessary to advert to statements of fact as made in the written statements.

Mr. Jhingan, learned counsel for the petitioner, has, inter alia, contended that orders of imposition of the penalty against the petitioner were wholly unjustified and the provisions of Section 48 of the Act were not at all attracted. He has further submitted that the lawyer, who had filed the returns in respect of three quarters, had, in fact, not been authorised to sign the returns on behalf of the petitioner and consequently those returns could not form a basis to arrive at the conclusion that the petitioner had deliberately concealed the gross turnover from the department. Mr. Jhingan has also contended that the Tribunal had erred in upholding the imposition of penalty while considering the appeal filed by the petitioner. According to the learned counsel, the Tribunal could at best dismiss the appeal, but could not have made any adverse observations against the order passed by the Joint Excise and Taxation Commissioner, copy of which order has been produced as annexure P-2.

The claim made on behalf of the petitioner has been controverted by Mr. Jaswant Singh, advocate, and Mr. S.S. Khetarpal, District Attorney. In the circumstances of the case, as I am inclined to remand the case, it is not necessary to go into the merits of the controversy in so far as the validity of the returns, etc., filed by the petitioner is concerned. It is for the departmental authorities to find facts. So far as this Court is concerned, its primary jurisdiction under Article 226 of the Constitution is to correct the error of law by issue of a writ of certiorari. Proceedings under the Haryana General Sales Tax Act are conducted by the statutory authorities in a quasi-judicial manner. Error, if any, can be corrected by issue of a writ of certiorari. In this view of the matter, the court would normally feel no necessity to go into the findings of fact recorded by the Tribunal. In these circumstances, the primary question that requires consideration is regarding the validity of the order passed by the Tribunal.

A perusal of the record of the case shows that the Assessing Authority had imposed penalty against the petitioner in respect of the period, noticed above. On appeal, the Joint Excise and Taxation Commissioner had partially accepted the petitioner''s appeal and set aside the order of imposition of penalty for the second quarter. It had remanded the case to the Assessing Authority for fresh decision after consideration of all the relevant facts and law. It is also the admitted position that the department did not file any appeal or revision against the order passed by the appellate authority. It was only the petitioner that had filed an appeal before the Tribunal. While considering the appeal, the Tribunal in exercise of its powers u/s 39 of the Act could have only considered the points raised by the appellant before it. It could not have gone into the matters, which were not agitated by the Assessing Authority or challenged by the department by filing an appeal. Since the Assessing Authority has not challenged the findings of the appellate authority, it was not open to the Tribunal to consider those facts and make observations in regard thereto.

Mr. Jaswant Singh and Mr. Khetarpal appearing for the respondents contended that under Clause (6) of Section 39 of the Act, the Tribunal has the power to pass "such order on appeal as it deems to be just and proper..........". It is undoubtedly correct that Section 39(6) of the Act authorises the appellate authority to pass just and proper order. However, the exercise of this jurisdiction is confined to the claim made in the appeal before it. The Act does not confer any jurisdiction on the appellate authority to exercise any suo motu power. The Tribunal has to only decide the claim made before it. In the present case, the Tribunal failed to do so. Accordingly, the order passed by the Tribunal, a copy of which is annexure P-3, is set aside. The case is remanded to the Tribunal for its fresh decision on merit after hearing the parties.

So far as C.W.P. No. 8863 of 1991 is concerned, the order passed by the Tribunal on May 13, 1991, is also on record as annexure P-3. In view of the fact that the case is being remanded to the Tribunal for fresh decision on merits, it would be in the fitness of things that the parties are given a chance to make their respective submissions. Otherwise the possibility of contradictory findings cannot be ruled out. Keeping in view the totality of the circumstances of the case, the two civil writ petitions are allowed and the case is remanded to the Tribunal for fresh decision.

In view of the above, the learned counsel for the parties agree that the two sales tax cases have become infructuous and no case for interference exists.

Accordingly, the writ petitions are allowed and the sales tax cases are dismissed as having been rendered infructuous. In the circumstances of the case, there shall be no order as to costs.