ABDUL SATHAR Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner has been assessed to sales-tax for the assessment year 1981-82 both under the Kerala General Sales-tax Act and Central sales-tax Act. Exts. P18 and P19 are the assessment orders. THE petitioner seeks to have Exts. P18 and P19 quashed on various grounds contending inter alia that the assessment proceedings violate the petitioner's fundamental right under Art. 19 (1) (g) of the Constitution of India. THE main ground taken up is that there had been originally an assessment on the proprietor of the concern 'aries Spices' and the present assessment has been made on the premises that the business is a joint venture by three persons including the petitioner and such assessment amounts to double taxation and is without the authority of law. It has not been specifically alleged how the proceedings infringe the fundamental rights of the petitioner.

(2.) SHRI. Karunakaran Nambiar, Special Government Pleader (Taxes), has taken notice on behalf of the respondents. It is submitted that the petitioner, if aggrieved by the orders of assessment, has a statutory remedy to assail the same on all the grounds that have been urged in this petition and the existence of the alternative remedy would disentitle the petitioner to any relief in this writ petition. Learned counsel also referred to recent decisions of the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa, A. I. R. 1983 SC. 603 and Asst Collector C. E. Chandan Nagar v. Dunlop India Ltd. A. I. R. 1985 S. C. 330. Learned counsel for the petitioner has relied on the earlier decision of the Supreme Court in Beharilal Shyamsunder v. Sales-tax Officer (1966) 17 S. T. C. 508 as also the decision of this Court in appukutty v. Salestax Officer, Kozhikode, (19t6) 17 S. T. C. 380.

(3.) RELYING on this decision the learned counsel maintained that when salestax is imposed illegally in an arbitrary and capricious manner there is an infringement of the fundamental right of an assessee to carry on his trade or business. In Appukutty's case it was also observed thus: "although quasi judicial authorities nave jurisdiction to decide rightly as well as wrongly, no judicial or quasi judicial authority has the right to decide in an arbitrary manner and if it so decides, the High Court should safeguard the interest of the victim of such decision by interfering under Art. 226 of the Constitution. Further, in such cases. Art. 265 of the Constitution is also violated, in as much as there is no collection of tax by the authority of law when assessments are made in an arbitrary fashion. "