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Judgment
Dinesh Maheshwari, J.—These two matters, being intrinsically inter-connected and essentially involving the same background facts and inter-related issues, have been considered together; and are taken up for disposal by this common order. The subject matter of this litigation relates to the proceedings said to have been adopted by the authorities of the Commercial Taxes Department of the Government of Rajasthan against the assessee, who is the petitioner in CWP No. 4310/20909 and the respondent in SAW No. 67/2007. The intra-court appeal (SAW No. 67/2007) arises out of an order dated 05.12.2006 passed by a learned Single Judge of this Court in the writ petition filed by the assessee, being CWP No. 6982/2006. The other matter, being the writ petition (CWP No. 4310/2009), has been filed by the same assessee against the decision of the Assessing Authority dated 31.03.2009 (Annex. 18) while also seeking to assail the validity of the entries in the taxing statutes.
After having heard the learned counsel for the parties and having perused the material placed on record, we have formed the opinion that so far the writ petition (CWP No. 4310/2009) is concerned, the suggestions on the provisions of the enactments do not make out a case against the constitutional validity thereof and hence, after rejecting such part of the reliefs claimed, the matter deserves to be sent for consideration as an SB matter in relation to the other part of the reliefs claimed.
So far the intra-court appeal (SAW No. 67/2007) is concerned, we find that the short order passed by the learned Single Judge in disposal of the writ petition filed by the assessee, without notice to the present appellants, remains unsustainable and hence, while setting aside the order impugned, the said writ petition (CWP No. 6982/2006) of the assessee deserves to be restored for reconsideration by the learned Single Judge of this Court.
In view of the above, when in the ultimate result, both the matters deserve to be sent/restored for consideration by the learned Single Judge of this Court, we do not propose to pronounce anything finally on the merits of the issues to be considered by the Single Judge. For the purpose of this order, only a brief reference to the background aspects would suffice.
The assessee is said to have set up an establishment in the name of "Cooperative Vyanzan Shala, Saanjha Chulha, Siwanchi Gate, Jodhpur". The assessee allegedly started the concept of making supplies of the processed vegetables and got himself registered under the Central Sales Tax Act, 1956 (''the CST Act'') as also under the Value Added Tax Act, 2003 (''the VAT Act'').
The assessee filed a writ petition (CWP No. 6982/2006) with the submissions that when sweetmeats and other commodities were being supplied by him at a substantially lower price, a sense of insecurity was created in the mind of rivals in the business and thus, according to the allegations of the assessee, a conspiracy was hatched with the Assistant Commercial Taxes Officer (''ACTO'') of Ward-II, Circle-D, Jodhpur Mr. A.D. Charan, who was arrayed as respondent No. 5 in the said petition. The assessee alleged that in the season of Deepawali, in order to frustrate his concept, the said Mr. A.D. Charan along with an inspector and some other persons visited his office on 19.10.2006 without notice and proceeded to seize certain documents without giving any receipt. According to the assessee, ultimately, his father jotted down a receipt, which was allegedly signed by the said ACTO.
A copy of the said alleged receipt, which is the bone of contention between the parties, was filed with the said writ petition as Ex. 4. The ACTO Mr. A.D. Charan, who was arrayed as respondent No. 5 in the said writ petition, is the appellant No. 5 in SAW No. 67/2007, and has also joined as respondent No. 4 in CWP No. 4310/2009, has all through maintained that the referred document does not bear his signatures.
The assessee further stated in the said writ petition that he sent a telegram to the Commissioner, Commercial Taxes on 20.10.2006. The petitioner referred to the further proceedings said to have been adopted by the other ACTO Mr. B.L. Sharma, who was also joined as respondent No. 6 in CWP No. 6982/2006. The petitioner further submitted that he received a notice of inquiry on 27.10.2006 to which, he replied and also demanded the copies of the documents seized by Mr. A.D. Charan. The assessee averred in the petition that he received a notice dated 23.11.2006 to the effect that he could inspect the record but his right to get the certified copies was being indirectly denied.
The petitioner referred to the provisions of the VAT Act to submit that he was entitled to obtain the copy of the seized record and hence, prayed in the writ petition that the respondents be directed to supply the certified copies of the documents, of which no seizure memo had been given as also of the documents, which had been seized under receipt.
The aforesaid writ petition (No. 6982/2006) was taken up for consideration by a learned Single Judge of this Court on 05.12.2006. The learned Single Judge took note of the grievance of the assessee that the respondent department was not issuing certified copies of the documents seized under Ex. 4. After noticing this much, the learned Single Judge directed, without notice to the other side, that the writ-petitioner will be supplied the certified copies within one week and until supply of the copies, no prejudicial order shall be passed against him. With these observations, the writ petition was disposed of. The order dated 05.12.2006 reads as under:-
Heard.
The grievance of the petitioner is that the respondent department is not issuing the certified copies of the document seized vide Ex. 4. The petitioner will be supplied the certified copies within one week. Until the certified copies are supplied, no order prejudicial will be passed against the petitioner.
With these observations, the writ petition is disposed of.
Assailing the order aforesaid, the respondents of the writ petition have filed the appeal (SAW No. 67/2009) with the submissions that the learned Single Judge has passed the order without issuing any notice to them and they had no occasion to controvert the averments taken in the writ petition and to apprise the Court that the document Ex. 4 placed on record by the writ-petitioner was not a genuine one. It is maintained that the document filed with the writ petition as Ex. 4 was never executed and according to the appellants, who are related with the Commercial Tax Department, the entire story of seizure has been cooked up by the writ-petitioner just to prolong the inquiry and to pressurize the authorities of the department, who had taken up anti-evasion proceedings against him.
This appeal against the aforesaid order dated 05.12.2006 was admitted for consideration on 09.02.2007 and the respondent of the appeal, i.e., the writ-petitioner-assessee, was directed to place on record the original of the document Ex. 4. On filing, this document was ordered to be kept in the safe custody of the Dy. Registrar (Judl.) by the order dated 18.04.2007. The assessee had also filed an application for action against the appellant No. 5 Mr. A.D. Charan u/s 340 Cr. P.C. The appellants were granted further time for filing reply to the said application.
After several adjournments, the matter was considered on 16.05.2008 on the stay application filed by the appellants. The Court took note of the submissions of the learned counsel for the appellants that no document was seized on 19.10.2006 as alleged; and that the proceedings for assessment were held up because of the order passed in the writ petition. The Court also took note of the stand of the assessee that on 19.10.2006, some of the documents were seized by Mr. A.D. Charan and he put his signature in token thereof. The Court noticed that a note-sheet was prepared by the assessee himself showing some signature of Mr. A.D. Charan which was being disputed; and such was not that of usual practice. The Court also took note of the fact that the order impugned was passed by the Court while proceeding on the basis of certain seizure of documents which did not appear to be the fact. The Court proceeded to stay the operation of the order impugned and granted liberty to the appellants to proceed with the assessment but at the same time, also granted liberty to the assessee to challenge the assessment in accordance with law. The Court also made it clear that this order would not prejudice the case of the assessee at any stage of disposal of the appeal.
After the aforesaid order dated 16.05.2008, whereby the department was granted liberty to proceed with the assessment, the Assessing Authority indeed proceeded to complete the assessment and passed the assessment order on 31.03.2009. Assailing this assessment order dated 31.03.2009, the assessee has preferred the second writ petition, CWP No. 4310.2009, which is being considered in this common order. In this writ petition, notices were ordered to be issued on 26.05.2009. While issuing notices, the Court also took note of the submissions of the learned counsel for the assessee that since the limitation for filing the appeal against the assessment order was available, he would advise his client to prefer the appeal but it was observed that filing of the appeal will not adversely affect the consideration of validity of the provisions under challenge in the writ petition.
The assessee, thereafter, made an application in the appeal (SAW No. 67/2007) for sending the receipt (Ex. 4) to the Forensic Science Laboratory (''FSL'') for the handwriting expert''s report after comparison of the signatures of Mr. A.D. Charan. This application was allowed by the order dated 23.10.2009 and Mr. A.D. Charan was directed to give his specimen signatures and handwriting in various modes and the handwriting expert of the FSL was directed to give his report at the earliest.
Thereafter, both these matters (CWP No. 4310/2009 and SAW No. 67/2007) stood connected and were taken up together. After several adjournments, on 21.11.2011, an order came to be passed, which has been drawn in the file of CWP No. 4310/2009 whereby, Mr. A.D. Charan - appellant No. 5 in SAW No. 67/2007, was directed to ensure compliance of the order dated 23.10.2009 by giving his specimen signatures before the Dy. Registrar (Judl.) so as to enable him to obtain the report as required. On 09.05.2012, the Dy. Registrar (Judl.) was further directed to take appropriate steps for procuring the FSL report at the earliest. Thereafter, the papers forwarded were returned by the FSL with the objections that for the purpose of comparison, the originals of disputed and undisputed signatures as also the old undisputed signatures of Mr. A.D. Charan may be provided. By the order dated 18.01.2013, the Dy. Registrar (Judl.) was further directed to look into the matter and to take appropriate steps for procuring the requisite report. Certain more applications have been filed in these matters but we do not propose to dilate on the same for being not directly relevant for the present purpose. One aspect may, of course, be clarified that in CWP No. 4310/2009, the said Mr. A.D. Charan was not joined as a party in the first place but his application for impleadment (IA No. 183/2013) was allowed on 14.11.2013; and he was ordered to be joined as respondent No. 4 in the writ petition.
On 22.11.2013, when these matters were placed before the Court for orders, after having scanned through the record, we found it expedient and hence, heard the learned counsel for the parties on the issues involved. After having heard the learned counsel for the parties and having examined the record, we find no reason to continue with these matters in the Division Bench.
So far the intra-court appeal (SAW No. 67/2007) is concerned, without entering into any other aspect of the matter, we are clearly of the view that the order impugned cannot be sustained for the fundamental reason that the same has been passed without notice to the other side. It had been the case of the assessee in the writ petition that the documents were seized and a receipt therefor was scribed by his father, which was signed by the ACTO Mr. A.D. Charan. The learned Single Judge proceeded on the assumption that the document filed as Ex. 4 with the writ petition was an indisputable one. The learned Single Judge rather assumed correct all the facts as stated by the writ-petitioner and then, straightaway issued mandamus for supplying of the certified copies. Not only this, the prohibitory order was also passed that until supplying of the copies, no order prejudicial would be passed against the writ-petitioner. The prohibitory order effectively put at halt the assessment proceedings by the appellants. We are clearly of the view that before issuing any such mandamus and any such prohibition, it is the minimum requirement that the other side is put to a notice and its submissions are taken into consideration.
As has unfolded and transpired in this case, the document sought to be relied upon by the writ-petitioner (i.e., Ex. 4) is a thoroughly disputed document and it has been maintained consistently by the department and its officers that no such document was ever signed by the appellant No. 5 Mr. A.D. Charan. This Court, while staying operation of the order passed by the learned Single Judge, has indicated that the process as suggested by the assessee appears to be rather an unusual one where a note-sheet would be prepared by the assessee or any person related with him as regards the seizure of the documents and then, the same would be signed by the officer of the department. As the matter is proposed to be restored to the file of the learned Single Judge, we are not pronouncing finally on any of the contentious aspects of the matter and these observations are also not of final expression of any opinion either way but this much is certain that even on the pleadings, the said writ petition was not of such a formal or innocuous nature that a writ of mandamus and prohibition would have been issued without notice to the other side. On this count alone, the order impugned is required to be set aside.
Having regard to the circumstances, it does appear appropriate to restore the writ petition (CWP No. 6982/2006) for consideration afresh by the learned Single Judge.
Before concluding on the matter related with the intra-court appeal, it appears rather imperative to make necessary observations in relation to the proceedings that have taken place in SAW No. 67/2007 concerning the disputed piece of evidence. Upon our expressing tentative opinion that the matter may call for remand, the learned counsel for the parties made the contesting submissions as regards the orders passed in this appeal for obtaining the handwriting expert''s report on the disputed signatures. The learned counsel for the assessee would maintain that such orders were passed about 4 years back and are required to be complied with for bringing forth the true and correct factual aspect of the matter. On the other hand, the learned counsel for the department and its officers would strenuously argue that such orders may not be continued and they ought to stand annulled; and the matter deserves to be left open for the learned Single Judge to decide as to whether any such order is requisite or not.
In the peculiar facts and circumstances, in our view, the just and proper course would be to simply leave open the entire matter for exercise of discretion by the learned Single Judge because essentially, the matter would be considered in the writ jurisdiction. In the singular circumstances, it is considered appropriate and hence ordered that while endorsing the copy of this order for restoration of the writ petition for consideration afresh, the copies of all the orders passed in this appeal shall also be endorsed and placed in the file of the writ petition for appropriate consideration by the learned Single Judge. We would otherwise leave it open for the learned Single Judge to decide on the course to be adopted in the matter, i.e., as to whether any such process of requiring handwriting expert''s report is to be resorted to or not. It goes without saying that in case of the learned Single Judge deciding to adopt such a course, the orders passed in this intra-court appeal shall be duly taken note of.
So far the writ petition is concerned, it is noticed that the petitioner has made the prayers in the following terms:
i) It may be declared that Indian roti of every description, as stated in the Hy. Authority (Supra), is tax free item under item 54 of the Schedule I of the Act and
ii) That it may be declared that all kind of Processed Vegetables (Sabji) and Daals are taxable at 4%.
iii) That all kind of Processed Vegetables Rice may kindly be declared in the category of 4% tax.
iv) The Decision of the Assessing Authority Dt. 31/3/09 Ex. 18 to treat Indian Roti as goods u/s. Schedule V may kindly be quashed.
v) That the decision to treat the Roti u/s. Schedule V of the Act may kindly be declared as ultra vires of the Constitution of India as violative of Art. 14 and 21 of the Constitution of India.
vi) That treating the vegetables as an item u/s. schedule V may kindly be declared as ultra virus of the Constitution of India being violative of Art. 14 and 21 of Constitution of India.
vii) Any other order which this Hon''ble court consider proper may kindly be passed in the favour of the petitioner.
viii) Cost of the petition may kindly be allowed to the petitioner.
The expression "Hy. Authority (supra)" as occurring in the prayer clause pertains to the decision of the Hyderabad High Court, as reported in Kayani and Co. Vs. Commissioner of Sales Tax, . We do not wish to make any comment in regard to the other ground sought to be urged in this matter but are unable to find even a wee bit of reason that the matter be considered involving the question of constitutional validity of any statutory provision on the relevant grounds like violation of any constitutional mandate or the competence of the legislature. As to which of item/commodity is to be included in which schedule of CST Act or VAT Act; and subjected to what rate of tax, are essentially the matters within the competence of concerned legislature and the authorities. The grounds as taken in this writ petition do not make out any cogent reason to consider any provision of the relevant taxing statute as ultra vires. Such part of the reliefs is required to be, and is, rejected. The other prayer made in the writ petition, as to how any particular item is to be dealt with in the taxing statute, could be the matter of any other nature but in any case, cannot be considered relating to the constitutional validity of the statutory provisions.
In the aforesaid view of the matter and without any other comment on the merits of the issues, we are of the view that the only issue calling for determination in this writ petition (CWP No. 4310/2009) is regarding prayer (iv) therein. That could, of course, be considered by the learned Single Judge of this Court.
In view of what has been discussed above, CWP No. 6982/2006 shall stand restored for consideration of the learned Single Judge. The appellants of SAW No. 67/2007, who are respondents in the said writ petition, shall obviously be deemed to have been served and shall be at liberty to file appropriate reply to the writ petition. CWP No. 4310/2009 shall also be placed before the learned Single Judge along with CWP No. 6982/2006.
The appeal (SAW No. 67/2007) stands partly allowed to the extent and in the manner indicated. The writ petition (CWP No. 4310/2009) also stands disposed of, so far the Division Bench is concerned. The parties through their respective counsel shall stand at notice to appear before the learned Single Judge in both the matters (CWP Nos. 6982/2006 and 4310/2009) on 05.05.2014. The Dy. Registrar (Judl.) shall also take steps for placing all the relevant material, including the document placed in the safe custody, for consideration before the learned Single Judge. No costs.