LUX HOSIERY INDUSTRIES LTD Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THIS is a writ petition filed under Article 226 of the Constitution of India challenging the correctness of the order of assessment for the assessment year 2003 -04 made against the petitioner.

(2.) MR . Vijay Narayan, learned Senior Counsel appearing for the petitioner submitted that the order is ex -facie illegal order as the assessing officer committed a manifest error in framing the assessment. The assessee has filed form F. Without rejecting form F, the assessing officer has passed the assessment order, which has been deprecated by the court. He further submitted that the assessee has already filed an appeal against the impugned assessment order before the second respondent. However, he submits that the appellate remedy is onerous because the statute requires, in order to entertain an appeal under Section 31 of the Tamil Nadu General Sales Tax Act, 1959 the assessee has to pay 25 per cent of the disputed tax as provided under the proviso to Section 31. When the order is an illegal order, the petitioner can move this Court under Article 226 of the Constitution of India not withstanding filing of the statutory appeal. So, the petitioner is entitled to move a writ petition inspite of an appeal is filed without making the necessary payment. He further contended that, it is well -settled that when the court earlier passed an order that without rejecting form F, assessment cannot be made, when the mistake is pointed out, inspite of the fact of filing an appeal, the writ petition is maintainable.

(3.) AS regards the first argument that the impugned order has been framed against the earlier order of this Court, hence writ is maintainable, we can easily have the reliance of the Supreme Court decision made in Union of India v. Tata Engineering and Locomotive Co. Ltd. reported in AIR 1998 SC 287, where the very same argument has been advanced and has been rejected by the Supreme Court. In paragraphs 4 and 5 of the said judgment, the Supreme Court has held as follows: 4. In our view, this writ petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow the judgment of the High Court or this Court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the Regional Sales Offices, the court cannot stop him from making such enquiries.