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Judgment
S. Nagamuthu, J.—The petitioner is a company incorporated under the provisions of the Indian Companies Act. For the years 1992-93, 1993-94, 1994-95 and 1995-96, a show-cause Notice was issued by the respondent under the provisions of the E.S.I. Act, calling upon the petitioner to show cause, as to why assessment should not be made as proposed in the said Notice. The petitioner appears to have submitted an explanation therefore .Thereafter, the respondent, by proceedings No. TN/INS.III/51-19526-31/C18/41/99, dated 31.12.1999, passed final orders u/s 45-A of the ESI Act, thereby, assessing the petitioner to pay the ESI contribution for the above years. The said order has become final. Based on the such order, the petitioner duly paid the contributions to the ESI Organisation. While so, the respondent, has issued a fresh notice in No, TN/INS/111/51-19526-31/C18 Ad-hoc/1948/01, dated 27.9.2001, ceiling upon the petitioner to show cause as to why a total sum of Rs. 8,96,905-28 should not be assessed u/s 45-A of the Act for the very same period viz., for 1992-93, 1993-94, 1994-95 and 1995-96. Challenging the same, the petitioner is before this Court with the above writ petition.
The learned Counsel for the petitioner would rely on a judgment of this Court in Quality Engineering Works v. Regl. Office, ESIC,1 wherein, after referring to various judgments including a Division Bench decision of this Court, a learned Single judge of this Court has held that there is no provision, exists under the ESI Act empowering the authority to re-open the order of assessment already concluded. In this case,. according to the learned Counsel, for want of jurisdiction on the part of the respondent, the impugned notice is liable to be quashed.
In the counter-affidavit filed by the respondent., inter alia, it is stated that there were certain omissions when the earlier assessment order was made and, in order to rectify the same the present, show-cause notice came to be issued.
I am of the considered opinion that even if the said allegations are true, since there is no power conferred upon the respondent by the statute, thereby empowering the said authority to re-open the assessment already concluded, it is far beyond his jurisdiction to take upon such exercise. Therefore, the conclusion is that, the impugned notice is wholly without jurisdiction and it is liable to be quashed. Though it is true that the petitioner has, got an alternative remedy by submitting his explanation before the respondent, in my considered opinion, on that, score, the writ petition cannot be dismissed. Here is a case where the notice under challenge is wholly without, jurisdiction and therefore, driving the petitioner to avail the alternative remedy would only be time consuming. Also, there would no purpose in directing the respondent to proceed further on the basis of the show-cause notice because of the reason that initiation of proceedings under the show-cause. notice is wholly without jurisdiction.
In this view of the matter, the writ petition is allowed, quashing the impugned notice in proceedings No. TN/INS/III/51 19526/31-C-18 ad-hoc/ 1948/01, dated 27.9.2001. Connected Miscellaneous petition is closed.