Tiyarcee Tiles vs Additional Sales Tax Officer, Department of Commercial Taxes

K.A. Abdul Gafoor, J.—A small-scale industrial unit which claims exemption from sales tax is the writ appellant. The prayer was declined by the learned single judge. Therefore this appeal.

An industrial unit, namely, Pauly Tiles, was admittedly a small-scale industrial unit eligible for tax exemption and accordingly the same was granted to that unit during the period from June 28, 1988 to June 27, 1993. The exemption was granted to the tune of Rs. 5,92,299. The said unit ceased to function and thereafter it was purchased by a new management and is presently run in the name and style of the appellant. The appellant was given exhibit PI revised order, granting tax exemption during the period from April 1, 1990 to May 31, 1993 for the balance to be availed of by the former unit, to the tune of Rs. 5,38,574. The appellant was served with an assessment order exhibit P2 for the year 1990-91 allowing tax exemption to the tune of Rs. 12,970. But when the assessment notice for the next year, namely 1991-92, was issued as per exhibit P3, this exemption was not proposed. The same was the case in respect of the subsequent years up to 1993-94. The pre-assessment notice, exhibit P3, had resulted in final assessment order dated October 31, 1995 for the year 1991-92. The final assessment orders in respect of 1992-93 and 1993-94 are exhibits P6 and P7, respectively, dated March 22, 1997 and April 22, 1998. Considering the Central sales tax payable corresponding to exhibits P5, P6 and P7, exhibits P5(a), exhibits P6(a) and P7(a) orders were also passed on the same dates.

It is contended that while passing exhibits P5 and P5(a) dated October 31, 1995, exhibits P6 and P6(a) dated March 22, 1997 and exhibits P7 and P7(a) dated April 22, 1998, the exemption had not been taken note of. It is submitted that exemption is to be granted not to the management but to the SSI unit, which was earlier admitted. Change in the management or transfer in the unit cannot take away the benefit of exemption granted for an industrial unit. Therefore the assessment orders for the said three years denying the exemption were bad.

Even if the contention of the petitioner is accepted in toto we are afraid that it will give rise to a bad precedent. The original petition was filed only on February 18, 2000. The impugned assessment orders had been passed on October 31, 1995, March 22, 1997 and April 22, 1998. There is a lapse of almost 2 years from the last among these three orders to file the original petition. The petitioner''s counsel do not dispute before us that these three assessment orders are amendable for statutory appeal provided in Section 34 of the Kerala General Sales Tax Act, 1963 for which limitation of 30 days is prescribed. If this original petition filed years after the impugned order is entertained it will result in permitting the petitioner to circumvent the statutory provisions regarding the limitation to redress his grievance. Necessarily, he cannot be heard to contend so, even if there is any illegality to be rectified in a proceedings under Article 226 at this belated stage, that too bypassing the statutory remedy. He cannot be thus allowed to challenge the assessment orders passed long ago, in this writ petition as he could not have challenged those orders, even otherwise, resorting to the statutory remedy at this belated stage, ordinarily.

The remedy available under Article 226 of the Constitution of India is to avert an injustice and not to circumvent statute and thus precipitating injustice. In such circumstances the writ petition can be termed only as an attempt to evade the statutory prescription of time-limit in filing appeals and other adjudicatory process and to get a relief which he otherwise would not have obtained. That cannot be permitted in a petition invoking Article 226 of the Constitution of India.

Therefore, though on a different ground, we confirm the judgment impugned.