Reliance Generators Pvt. Ltd. vs The Commercial Tax Officer

K. Mohan Ram, J.—The above writ petitions have been filed by the petitioner for the issuance of writs of certiorari to call for the records on

the file of the respondent in its proceedings in TNGST Nos. 1480991/2001-02 and 1480991/2002-03 respectively dated 30/12/2005 and to

quash the same.

In these two writ petitions, the pre-revision show cause notices issued by the respondent have been challenged. The impugned notice in W.P.

No. 5293 of 2006 reads as follows:-

The dealers are engaged in the supply, installation, testing and commissioning of Diesel Generators to BSNL for its various telephone exchanges. In

this kind of transaction the Generators are supplied as standard unit and the wires and other ancilliaries are not part of the generating sets. They are

therefore, to be treated as sale only and not works contract as installation, testing and commissioning are only incidental. In the case law reported

in State of Andhra Pradesh Vs. Kone Elevators (India) Ltd., , the Supreme Court of India had held that the material consumed in producing the lift

to be delivered and skill and labour employed for converting the main components into the end product was incidentally used and therefore, the

delivery of the end product by the assessee to the customer constituted a sale and not works contract. The transactions of the dealers are similar to

the case law reported above. Thus their transactions only a contract of sale to the customers and not to be treated as works contract.

In as much the said transactions are to be treated as sale, it is proposed to revise the assessment of the dealers u/s 16 (1) and assess the turnover

of Rs. 1,47,08,860/- @ 16% as first sales of generator.

The impugned notice in W.P. No. 5294 of 2006 also contains the same averments.

The learned counsel appearing on behalf of the petitioner relied upon a judgment reported in Nasir Ahmad Vs. Assistant Custodian General,

Evacuee Property, Uttar Pradesh, Lucknow and Another, wherein in paragraphs 3 and 4, it has been held as follows:-

The foundation of a proceeding u/s 7 is a valid notice and an enquiry which travels beyond the bounds of the notice is impermissible and without

jurisdiction to that extent. Therefore, the declaration that the appellant was an evacuee under clauses (i) and (ii) of Section 2 (d) of the Act must be

held invalid.

Under Rule 6 the notice u/s 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared

evacuee property. As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which

the case against the appellant was based. It was essential to state the particulars to enable the appellant to answer the case against him. Clearly

therefore, the notice did not comply with Rule 6 and could not provide a foundation for the proceedings that followed.

Relying upon the above passage, the learned counsel submitted that the notices issued by the respondent in these cases are vague and the

grounds on which he proposes the revised assessment have not been indicated in the notice. In Nasir Ahmad Vs. Assistant Custodian General,

Evacuee Property, Uttar Pradesh, Lucknow and Another, , the appellant was declared an evacuee by the Assistant Custodian (Judicial) Deoria.

Having failed to have the declaration set aside by the appellate and the revisional authorities under the Act, the appellant moved the High Court by

a Writ petition challenging the notice u/s 7 and the subsequent proceedings based on it. Before the High Court also, the appellant failed. Against

the judgment of the High Court, an appeal was filed before the Supreme Court. While dealing with the case, the Supreme Court has extracted the

facts of that case as follows:

The notice in question was issued by the Assistant Custodian, evacuee Property, Deoria, to the appellant and his brother Bashir Ahmad on March

11, 1954 stating that there was ""credible information in possession of the Custodian"" that they were evacuees under clause (iii) of Section 2(d) of

the Act and calling upon them to show cause why orders should not be passed declaring them evacuees and their property as evacuee property.

The notice purports to have been issued in accordance with Rule 6 which requires a statement of the factual grounds on which the notice is based.

The notice in this case appears to be merely a copy of the prescribed form without particulars. The ground stated in the notice reproduces only

what the form contains and that is as follows:

Acquisition of any rights to, interest in or benefit from any evacuee or abandoned property in Pakistan, otherwise than by way of purchase or

exchange.

By his order dated December 14,1955, the Assistant Custodian (Judicial), Deoria, declared the appellant and his brother evacuees under clauses

(i), (ii) and (iii) of Section 2(d) though in the notice issued it was alleged that the information in possession of the Custodian was that they were

evacuees under clause (iii) only....

It has been stated already that the notice issued under Rule 6(1) was based only on that ground and clauses (i) and (ii) of Section 2(d) were not

mentioned at all in that notice.

While considering the validity of the final order passed on the basis of the above said notice, the Supreme Court has held that the foundation of a

proceeding u/s 7 is a valid notice and an enquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that

extent. It has been further held that it was essential to state the particulars to enable the appellant to answer the case against him.

But in the notice under challenge in this case, it has been clearly stated that

The dealers are engaged in the supply, installation, testing and commissioning of Diesel Generators to BSNL for its various telephone exchanges. In

this kind of transaction the Generators are supplied as standard unit and the wires and other ancilliaries are not part of the generating sets. They are

therefore, to be treated as sale only and not works contract as installation, testing and commissioning are only incidental.

The above said passage sets out the entire details on which the Assessing Officer is proposing to revise the assessment. The respondent has also

indicated that the transaction in question will have to be covered by the judgment reported in State of Andhra Pradesh Vs. Kone Elevators (India)

Ltd., .

Therefore, it is clear that the respondent herein has clearly stated the grounds on which he proposes to pass the revised assessment, by no

stretch of imagination it could be said that the notices are vague. The question to be decided by the respondent herein is whether the transaction in

question is works contract or a case of sale. It is open to the petitioner herein to submit its detailed objections and establish its case. The facts of

this case and the facts of the case in Nasir Ahmad''s case are totally different. Therefore, the ratio laid down by the Apex in Nasir Ahmad''s case is

not applicable to the facts of this case.

The Honourable Apex Court has time and again pointed out that the writ petitions filed under Article 226 of the Constitution of India should not

be entertained at the stage of show cause notice, unless, the show cause notice is issued by an authority who has no jurisdiction to do so. When

this Court asked the learned counsel for the petitioner as to what are all the details which he wants, he is not able to tell the same. The petitioner is

in possession of all the particulars and details relating to the works contract and he can very well produce the same before the respondent and

convince him that it is only a works contract and not a sale transaction. Without doing so, the petitioner has approached this Court under Article

226 of the Constitution of India, which is legally impermissible.

The above view of mine is supported by the law laid down by the Hon''ble Supreme Court of India reported in The Special Director and

Another Vs. Mohd. Ghulam Ghouse and Another, . In paragraph No. 5 of the judgment, it is laid down as follows:-

This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show

cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the

parties. Unless the High Court is satisfied that the show-cause notice was totally non-est in the eye of the law for absolute want of jurisdiction of

the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ

petitioners should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-

cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also

can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes

an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of

powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not

accorded to the writ petitioner even at the threshold by the interim protection granted.

The show cause notice issued in this case cannot be said to be non-est in the eye of law for absolute want of jurisdiction of the respondents

herein. The High Court ordinarily does not interfere in writ jurisdiction with show cause notices. Merely by the issue of the impugned show cause

notice, none of the rights of the petitioner was affected. Writ petitions cannot be entertained for the mere asking and as a matter of routine and

therefore this Court is of the view that the petitioner should be permitted to respond to the show cause notice and put forth all its objections.

The above writ petitions are devoid of merits and the same are liable to be dismissed. Accordingly, the above writ petitions are dismissed. No

costs. Consequently, the connected W.P.M.P. Nos. 5666 and 5667 of 2006 are also dismissed.