DAELIM INDUSTRIAL CO LTD Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner, a Company incorporated in Korea, entered into a contract with M/s. Numaligarh Refinery Limited for execution of a Co-Generation Plant at Numaligarh in the State of Assam. Two separate contract agreements, one for indigenous supplied and services and the other for overseas supplied and services, were entered into by and between the parties, which were later amalgamated into a single contract. After obtaining necessary statutory permission from the Reserve Bank of India, for undertaking the business in question, the petitioner company registered itself under the provisions of Assam General Sales Tax Act, 1993 (hereinafter referred to as "the Act") and filed its return for the financial year 1995-96 disclosing a gross turnover of Rs.75,21,500.00. The return filed by the petitioner company was finalised by assessment order dated 21.3.1997 passed by the authority empowered to complete the assessment under the Act. In the aforesaid assessment order dated 21.3.1997 an amount of Rs.63,36,094.00 claimed by way of deduction by the petitioner company on account of value of works executed by subcontractors was disallowed and added to the gross turnover. Another amount of Rs.35,49,000.00 being the value of design and engineering in respect of which deduction was claimed by the petitioner Company was also disallowed and the aforesaid amount was similarly added to the gross turnover of the petitioner Company. Apart from the aforesaid two deductions, the entire turnover relating to overseas supplies and services amounting to Rs.3,74,97,667 was added to the gross turnover and on the basis of the aforesaid computation, the Assessing Officer determined the tax payable and after deduction of tax already paid, worked out the balance tax payable along with penalty. Aggrieved, the writ petitioner has instituted the present proceedings under Article 226 of the Constitution calling into question the aforesaid assessment order dated 21.3.1997.

(2.) I have heard Mr G.K. Joshi, learned senior counsel appearing on behalf of the writ petitioner and Mr B.J. Talukdar, learned counsel appearing on behalf of the Revenue.

(3.) An assessment order passed under the provisions of the Act is an appealable order and ordinarily an aggrieved assessee must be left to ventilate his grievances in respect of the assessment made by the competent authority before the appellate forum provided by the Act. Mr Joshi, senior counsel appearing for the petitioner has tried to overcome the first obstacle coming in the way of adjudication of the merits of the controversy in the present case, by contending that as the instant writ application has remained pending in this Court since the year 1997, the writ petitioner ought not be relegated to the appellate forum at this belated stage and that this Court may proceed to adjudicate the grievances of the petitioner. Mr Joshi, learned counsel, has in this regard relied on a decision of the Division Bench of this Court in the case of Borsapori Tea Estate -Vs-Additional Deputy Commissioner, Golaghat, reported in 1995 (1) GLR 203. According to Mr Joshi the law laid down by the Division Bench in the above noted case is that once a writ petition is admitted to final hearing, the same ought to be heard on merits and should not be dismissed on the ground of availability of alternative remedy.