Tvl. C.K. Impex vs The Deputy Commercial Tax Officer, Roving Squad I Enforcement (South)

P.K. Misra, J.—Heard the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the

respondent.

The prayer in this writ petition is for issuance of a writ of certiorarified mandamus to call for records of the respondent in

G.D.No.845033/2002-2003 dated 14.1.2003 and quash the same as illegal, unlawful and unconstitutional and direct the respondent to release the

goods detained by the respondent.

The learned Special Government Pleader appearing for the respondent has raised preliminary objection regarding the maintainability of the writ

petition. It has been contended by the learned Special Government Pleader that in view of the provision contained in Article 323-B of The

Constitution of India and the constitution of the Special Tribunal under the Tamil Nadu Taxation Special Tribunal Act, 1992 and in view of the

decision of the Supreme Court reported in L. Chandra Kumar Vs. Union of India and others, , the remedy of the petitioner is to approach the

Tribunal and without approaching the Tribunal, the petitioner cannot straightaway invoke the jurisdiction of this Court.

It is not disputed that in pursuance of the provision contained in Article 323-B, Tamil Nadu Taxation Special Tribunal Act, 1992 (Act 42 of

1992) has been enacted and the Special Tribunal has been constituted. Section 7 of such Act will relate to the jurisdiction, powers and authority of

the Special Tribunal and it is extracted hereunder:-

Jurisdiction, powers and authority of special Tribunal.-- (1) Save as otherwise expressly provided in this Act, the Special Tribunal shall, with

effect on and from the appointed day, exercise the jurisdiction, powers and authority exercisable immediately before that day by all courts including

the High court (except the Supreme Court) for adjudication or trial of disputes or complaints with respect to all matters of levy, assessment,

collection and enforcement of any tax under any specified State Act and matters connected therewith or incidental thereto.

(2) Notwithstanding anything contained in this Act, all proceedings triable by any Court or Courts in accordance with the provisions of the Code of

Criminal Procedure, 1973 (Central Act 2 of 1974) shall continue to be tried by such Court and the Special Tribunal shall have no jurisdiction to try

such proceedings.

A perusal of this provision makes it clear that the Special Tribunal shall have the jurisdiction, powers and authority exercisable by the High Court

for adjudication or trial of disputes or complaints with respect of all matters of levy, assessment, collection and enforcement of any tax under any

specified State Act and matters connected therewith or incidental thereto. Keeping in view of the wide amplitude of powers u/s 7 of the said Act,

there cannot be any doubt that the Tribunal can also entertain the matter relating to the question of release of goods u/s 42 of the Tamil Nadu

General Sales Tax Act.

In the decision reported in L. Chandra Kumar Vs. Union of India and others, , it was observed as follows:-

Analysing the decision in Sampath Kumar''s case (AIR 1987 S.C. 386) against this backdrop, it is noted that the theory of alternative institutional

mechanisms established in Sampath Kumar''s case is in defiance of the proposition laid down in His Holiness Kesavananda Bharati Sripadagalvaru

Vs. State of Kerala, : In the matter of: Under Article 143 of the Constitution of India, and Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and

Another, : that the Constitutional Courts alone are competent to exercise the power of judicial review to pronounce upon the constitutional validity

of statutory provisions and rules. The High Court, therefore, felt that the decision in Sampath Kumar''s case, being per incuriam, was not binding

upon it. The High court also pointed out that, in any event, the issue of constitutionality of Article 323A(2)(d) was neither challenged nor upheld in

Sampath Kumar''s case and it could not be said to be an authority on that aspect.

In view of the aforesaid decision, the preliminary objection raised by the Special Government Pleader is accepted and the writ petition for the

purpose of the relief claimed by the petitioner is not maintainable. It goes without saying that the petitioner would free to file appropriate application

before the Tribunal. It is further directed that the original copy of the impugned order and other documents may be returned to the petitioner

forthwith. The writ petition is disposed of accordingly. No costs.