AKHIL KUMAR NIKHIL KUMAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) The writ appellants filed the writ petitions challenging the fresh assessment orders made under Section 18 of Assam General Sales Tax Act, 1993 (in short the 1993 Act) read with Section 9 (2) of the Central Sales Tax Act 1936 (in short the 1956 Act) by the Superintendent of Taxes, Assam, cancelling original assessment orders as well as the demand notes issued pursuant to such order of fresh assessment. The learned Single Judge upon hearing the learned counsel for the parties by the common judgment and order dated 10.5.2006 dismissed the writ petitions refusing to exercise the writ jurisdiction under Article 226 of the Constitution of India on the ground of availability of alternative remedy by way of statutory appeal provided under Section,33 (6) of the 1993 Act as well as under the provision of the 1956 Act, making it clear that the dismissal of the writ petitions shall not stand on the way of the writ petitioners/appellants to approach the appellate forum if so advised. The present appeals have been filed by the writ petitioners challenging the said common judgment and order passed by the learned Single Judge refusing to exercise the writ jurisdiction in view of existence of statutory alternative remedy by way of appeal under the provision of the said Acts.

(2.) The facts, in brief, necessary for the purpose of the present appeals are that the appellants/writ petitioners, who are registered dealers registered under the provision of the 19993 Act as well as the 1956 Act and dealing with the purchase of Tea from Guwahati Tea Auction Center and selling the same in course of inter-State trade and commerce to the registered dealers having their business out side the State of Assam, submitted their returns for various assessment years under the 1993 Act. The Superintendent of taxes after going through the books of accounts and documents submitted by the assessees, completed the assessment under Section 17 (4) of the 1993 Act read with Section 9 (2) of the 1956 Act by different order and determined the tax as Nil, on the ground that the sales were made outside the State to the registered dealers in course of inter-State sale. The Superintendent of taxes, thereafter, on the basis of the information available to him that fake 'C' Forms have been submitted by the appellants/writ petitioners, issued show cause notices asking them to show cause as to why the C-Form mentioned in such show cause notices should not be treated as Flake/ obsolete. The assessees/writ petitioners, thereafter, appeared before the Superintendent of taxes and filed the show cause replies intimating the said authority that the C-Form mentioned in the show cause notices were made to genuine parties giving full details of such sales to the authority at the time of assessment and such C-Forms send by the purchasers were accepted by the assessees/writ petitioners on good faith as there is no mechanism to verify the genuineness of such C-Form received by the petitioners. The petitioners/ assessees, in the said reply to the show cause notices, requested the assessing authority; namely, the Superintendent of Taxes to make available all the materials/evidences in his possession on the basis of which the show cause notices were issued, so as to enable them to meet the case that might be made against them on the basis of such materials/ evidences. The assessing authority, thereafter, passed the order under Section 18 of the 1993 Act read with Section 9(2) of the 1956 Act making a fresh assessment of taxes by holding that the C-Forms submitted by the assessees/writ petitioners during the relevant periods were not genuine and the same were fake and fictitious. The assessing authority by the said orders recorded the reasons for not furnishing the information as well as the materials/evidences on the basis of which the show cause notices were issued, as those are purely of secret nature and there may be scope for manipulation. The said orders of fresh assessment were challenged by the present appellants in different writ petitions before the learned Single Judge.

(3.) We have heard Mr. D. K. Mishra, learned senior counsel appearing on behalf of the appellants as well as Mr. K. N. Choudhury, learned Additional Advocate General appearing on behalf of the respondents.