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Judgment
Yogeshwar Dayal, C.J.—The petitioner, a registered dealer under the Andhra Pradesh General Sales Tax Act (hereinafter referred to as "the Act"), is carrying on the business in bran oil, etc., at Nellore. For the assessment years 1976-77 to 1978-79, the Commercial Tax Officer, while finalising assessments of the petitioner-firm, levied additional tax on the turnover relating to purchases made u/s 6-A of the Act to the tune of Rs. 10,93,540, Rs. 16,34,690 and Rs. 25,81,726 by separate orders dated 21st July, 1979, 30th July, 1979 and 5th March, 1981 respectively for the aforesaid assessment years.
The petitioner, it is stated, bona fide believed that the levy of additional tax on the purchases made u/s 6-A of the Act was legal and did not file any appeals. It is stated that when the petitioner met his auditor in January, 1983, in connection with some other appeals, he was informed of the decision of this Court in the case of Hindustan Milk-food Manufacturers Ltd. v. State of Andhra Pradesh [1982] 51 STC 1 wherein it was held that section 5-A of the Act levying additional tax cannot be considered to cover the turnover tax u/s 6-A of the Act as well and he was advised to carry the matter further.
The petitioner, accordingly, filed revision application before the Deputy Commissioner, Commercial Taxes, Nellore u/s 20 of the Act contending that the orders of the Commercial Tax Officer in so far as it levied additional tax on turnover u/s 6-A is illegal.
The Deputy Commissioner entertained the revision and passed orders dated 25th August, 1983 upholding the claim of the petitioner following the decision of the Division Bench of this Court in Hindustan Milkfood''s case [1982] 51 STC 1 and directed the concerned authority to grant the necessary relief.
The petitioner alleged that three years thereafter, the Commissioner of Commercial Taxes sought to revise the order dated 25th August, 1983 on the ground that section 20 of the Act which gave power for suo motu revision to the Deputy Commissioner did not empower the Deputy Commissioner to exercise that power of revision at the instance of the assessee and decided to recall the order of the Deputy Commissioner dated 25th August, 1983. This view of the Commissioner is contrary to the decisions of this Court in In re State of Andhra Pradesh [1983] 54 STC 132 and Gill & Co. v. Commissioner of Commercial Taxes, A.P., Hyderabad [1987] 65 STC 232. By the impugned order, the Commissioner of Commercial Taxes has set aside the order of the Deputy Commissioner dated 26th August, 1983 and levied additional tax u/s 5-A of the Act on the turnover determined for purposes of section 6-A of the Act. Section 5-A of the Act at the relevant time read as under :
"5-A. Levy of additional tax on turnover. - Every dealer who is liable to pay tax u/s 5 shall, in addition to the tax payable under that section, pay for each year a tax at the rate of one-fourth paisa, on every rupee of his turnover liable to tax, if his total turnover for that year is rupees three lakhs or more."
It may be mentioned that sections 5-A and 6-A of the Act have since been amended with effect from 1st July, 1985 by the Andhra Pradesh Act No. 18 of 1985. But we are not concerned with the provisions as they are now but we are concerned with the provisions as they were during the relevant assessment years. In view of the wording of section 5-A for levy of additional tax on turnover, the Division Bench in Hindustan Milkfood Manufacturers Ltd. Vs. State of Andhra Pradesh and Another, took the view that additional tax could not be levied on the turnover u/s 6-A. In fact, it was after that decision that sections 5-A and 6-A of the Act were amended. The position thus boils down to this, that levy of additional tax on turnover during the relevant assessment years u/s 6-A was totally without jurisdiction. It is not a question on what turnover additional tax could have been levied. But the question is that there was no power in the taxing authority for the relevant assessment years to charge additional tax u/s 5-A on the turnover for the purposes of section 6-A. It is in this situation that the present writ petition has been filed on behalf of the assessee for quashing the orders of the Commissioner of Commercial Taxes in relation to the aforesaid three assessment years dated 9th July, 1986.
In the writ petition, the petitioner has also challenged the vires of section 6-A. But that question is not being argued in view of the fact that in Hindustan Milkfood''s case [1982] 52 STC 1 (AP), this Court took the view that section 6-A of the Act was constitutional and valid. The two reliefs prayed in the writ petition are (1) that section 6-A should be declared as unconstitutional and (2) to declare the levy of additional tax u/s 5-A of the Act to be illegal. In view of the decision of the Division Bench in Hindustan Milkfood''s case [1982] 52 STC 1 (AP), the first prayer, as we have noticed, is not being pressed and only the second prayer is pressed on behalf of the assessee.
The learned Government Pleader, however, submits that this Court should not entertain the present writ petition under article 226 since a remedy of appeal is provided u/s 23 of the Act to the High Court itself within sixty days from the date the order of the Commissioner is communicated to the assessee and he brought to our notice, the decision of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, and submitted that the Supreme Court has laid down as a rule that whenever alternative remedies are provided under the sales tax law, the High Court should not entertain petitions under article 226 of the Constitution. The Supreme Court has observed in the aforesaid case :
"It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of."
It will be noticed that as stated earlier, at the relevant time, there is no liability created by the aforesaid Act for levy of additional tax u/s 5-A on turnover provided u/s 6-A. It is a case of total inherent lack of jurisdiction in the Commissioner to levy additional tax where it is not provided for on the facts of the case under the Act. It is not a case where the question is whether the turnover should be "A" or turnover should be "A + B". Nor is this a type of a case where the dispute was as in the Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, , whether it is an inter-State sale or an intra-State sale. These depend on appreciation of facts. The High Court in the aforesaid case had also dismissed the writ petition on the ground that it was not a case of inherent lack of jurisdiction and the Supreme Court agreed with the view of the High Court. On the facts of the present case, it appears to us that it is a case of total inherent lack of jurisdiction in imposing tax on turnover u/s 6-A and the question arises whether on the facts of this case this Court should entertain the present writ petition under article 226 of the Constitution. It will be noticed that no citizen can be deprived of his property without the authority of law. If it is a civil suit of the nature contemplated by the facts of the present case, it would not be barred under the provisions of section 36 of the Act. Section 36 of the Act bars jurisdiction of civil courts in the following cases :
"36. Bar of jurisdiction of courts. - Save as otherwise expressly provided in this Act, no court shall entertain any suit, or other proceeding to set aside or modify, or question the validity of any assessment, order or decision made or passed by any officer or authority under this Act or any rules made thereunder, or in respect of any other matter falling within its or his scope."
Surely, if the tax is imposed without the authority of law, it will be a matter well outside the scope of the Act and the suit would be maintainable to claim refund. In that situation, it will be too much for us to say that we should not entertain the writ petition even when the order suffers from total lack of inherent jurisdiction. There is no doubt that the Commissioner had the power to entertain the revision. But the Commissioner had total lack of jurisdiction to levy the additional tax in dispute. We, therefore, feel that the ratio laid down by the Supreme Court in Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, will not apply to the facts of the present case. Even otherwise, it appears to us that it is a technical objection being raised on behalf of the assessing authority inasmuch as the alternative remedy pleaded by way of appeal also lies to the High Court. On the facts of the case, this is a fit one for interference under article 226 of the Constitution in view of the total lack of inherent jurisdiction in the Commissioner of Commercial Taxes in imposing the additional tax u/s 5-A of the Act. We would accordingly quash the order dated 9th July, 1986 passed by the Commissioner for the aforesaid three assessment years. However, the parties are left to bear their own costs in the present proceedings.
The writ petition is allowed to aforesaid extent.
Writ petition allowed.