Delhi High Court In Valvoline Cummins Limited v. Deputycommissioner Of Income Tax And Another [2008 (171) Taxman 241(Delhi

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 03.03.2015 THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.No.5612 of 2015 Tvl. Vinayaga Metals,represented by its proprietor,Thiru.M.Ramalingam,No.210, Bazaar Street,Kurinjipadi, Cuddalore Taluk.... Petitionervs. 1.The Deputy Commercial Tax Officer, Cuddalore Taluk Assessment Circle, 1, Commercial Taxes Buildings, Sub Jail Road, Manjakuppam, Cuddalore – 607 001. 2.The Assistant Commissioner (Commercial Taxes), Cuddalore Taluk Assessment Circle, 1, Commercial Taxes Buildings, Sub Jail Road, Manjakuppam, Cuddalore – 607 001. ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitutionof India to issue a Writ of Certiorari to call for the records inrespect of the impugned Revised Assessment Order TinNo.33364400929/2012-13 dated 29.05.2014 of the first respondentunder the Tamil Nadu Value Added Tax Act, 2006, quash the same. Writ petitioner has come forward with this petition seeking toquash the impugned Revised Assessment Order of the first respondentdated 29.05.2014. 2. Heard learned counsel for the petitioner and learnedAdditional Government Pleader (Taxes). https://hcservices.ecourts.gov.in/hcservices/ 3. Learned counsel for petitioner submits that the petitioneris having objection to the impugned order passed by the firstrespondent revising the original assessment order passed by thesecond respondent as the first respondent is subordinate to thesecond respondent. The order suffers from serious jurisdictionalflaw as it has been passed by the first respondent, who is inferiorin official rank to that of the second respondent. Learned counseldrew the attention of this Court to the provisions of Section 22(2)and 27(1)(a) of the Tamil Nadu Value Added Tax Act, 2006(hereinafter referred to as “Act”). 4. In reply, the learned Additional Government Pleader (Taxes)submitted that when both authorities have got concurrentjurisdiction, it cannot be said that the order passed by the firstrespondent is bad in law. Learned Additional Government Pleader(Taxes) drew the attention of this Court to Sections 2(5) and 48 ofthe Act, which are extracted below; “Sec.2(5) “assessing authority” means any personauthorised by the Government or by the Commissioner tomake any assessment under this Act. Section 48. Appointment of Commissioner of CommercialTaxes, Additional Commissioners of Commercial Taxes,Appellate Joint Commissioners of Commercial Taxes, JointCommissioners of Commercial Taxes, Appellate DeputyCommissioner of Commercial Taxes, Deputy Commissioners ofCommercial Taxes and Assistant Commissioners of CommercialTaxes.- The Government may appoint a Commissioner ofCommercial Taxes and as many Additional Commissioners ofCommercial Taxes, Appellate Joint Commissioners ofCommercial Taxes, Joint Commissioners of Commercial Taxes,Joint Commissioners of Commercial Taxes (Enforcement),Appellate Deputy Commissioners of Commercial Taxes,Territorial Deputy Commissioners of Commercial Taxes,Administrative Deputy Commissioners of Commercial Taxes,Deputy Commissioners of Commercial Taxes (Assessment),Deputy Commissioners of Commercial Taxes (Enforcement) andAssistant Commissioners of Commercial Taxes as they thinkfit, for the purpose of performing the functionsrespectively conferred on them by or under this Act. TheCommissioner of Commercial Taxes shall perform thefunctions conferred on him throughout the State, and theother officers shall perform their functions within suchlocal limits as the Government or any authority or officerempowered in this behalf, may assign to them.” 5. In reply, learned counsel for the petitioner submitted thatthere is no dispute with regard to the fact that both therespondents have got concurrent jurisdiction. However, once an orderhas been passed by the superior officer, the officer, lower in rank,cannot decide the application under Section 27 of the Act withregard to escape turn over. Learned counsel also relied on thejudgment of the Allahabad High court in Commissioner of Sales Taxhttps://hcservices.ecourts.gov.in/hcservices/vs. Kumar Brothers [1983 (52) STC 340 (All)] and the judgment of the Delhi High Court in Valvoline Cummins Limited vs. DeputyCommissioner of Income Tax and another [2008 (171) Taxman 241(Delhi)]. 6. It is not in dispute that the order has been passed by thefirst respondent, who is admittedly lower in rank to that of thesecond respondent. Nowhere in the provisions of the Act, it isstated that an officer lower in rank cannot decide the application.The provision to Section 2(5) of the Act makes it very clear thatany assessing officer is empowered to make assessment under thisAct. However, the Allahabad High Court in the decision cited suprahas held as follows: “6. The conferment of power under Section 30 to set asidean ex parte order carries with it the inherent limitationthat where that order has already been affirmed on meritsby a superior authority contemplated under the Act, itwould not be permissible for the inferior authority,nevertheless, to set it aside. Any other construction ofthe provision would lead to undesirable results. Theconferment of concurrent jurisdiction cannot be said tomean that the inferior authority would be able to take aview different from the one taken by the superiorauthority in respect of the same order unless there is aspecific provision enabling it to do so. The Uttar PradeshSales Tax Act, as its stands toady, does not contain aprovision permitting an inferior authority to set aside anorder which has, on merits, been affirmed by the superiorauthority.” 7. The Delhi High Court in the decision cited supra has held asfollows:“28. On the issue of 'concurrent' jurisdictionbetween the Additional Commissioner and the DeputyCommissioner, learned counsel for the assessee reliedupon a decision of the Calcutta High Court in BergerPaints India Limited and Ors. v. AssistantCommissioner of Income Tax and Ors. MANU/WB/0279/2000: [2000] 246ITR133 (Cal). The Calcutta High Court hadexplained the meaning of the expression 'concurrent'to mean two authorities having equal powers to dealwith a situation but the same work cannot be dividedbetween them. This is what the Calcutta High Courthad to say:Concurrent jurisdiction means a sub-ordinateauthority can deal with the matter equally withany superior authority in its entirety so thateither one of such jurisdictions can be invoked.It cannot be construed as concurrentjurisdiction when one part of the assessmentwill be dealt with by one superior officer andthe other part will be dealt with by onesubordinate officer.https://hcservices.ecourts.gov.in/hcservices/ 29. It appears to us quite clearly that there is adistinction between concurrent exercise of power andjoint exercise of power. When power has beenconferred upon two authorities concurrently, eitherone of them can exercise that power and once adecision is taken to exercise the power by any oneof those authorities, that exercise must beterminated by that authority only. It is not that oneauthority can start exercising a power and the otherauthority having concurrent jurisdiction can concludethe exercise of that power. This perhaps may bepermissible in a situation where both the authoritiesjointly exercise power but it certainly is notpermissible where both the authorities concurrentlyexercise power. One example that immediately comes tothe mind is that of grant of anticipatory bail. Boththe Sessions Judge and the High Court have concurrentpower. It is not as if a part of that power can beexercised by the High Court and the balance power canbe exercised by the Sessions Judge. If the High Courtis seized of an application for anticipatory bail itmust deal with it and similarly if the Sessions Judgeis seized of an anticipatory bail, he must deal withit. There can be no joint exercise of power both bythe High Court as well as by the Sessions Judge inrespect of the same application for anticipatorybail.” In view of the decisions extracted supra, this Court finds muchforce in the contention of the petitioner. Accordingly, this WritPetition is allowed. The Revised Assessment Order of the firstrespondent dated 29.05.2014, is set aside and the matter is remandedto the second respondent to consider the case afresh and passappropriate orders on merits and in accordance with law afteraffording the petitioner an opportunity of being heard. Thepetitioner is directed to appear before the second respondent on27.03.2015. No costs. Sd/- Asst.Registrar (CS III) gmTo https://hcservices.ecourts.gov.in/hcservices/1.The Deputy Commercial Tax Officer, Cuddalore Taluk Assessment Circle, 1, Commercial Taxes Buildings, Sub Jail Road, Manjakuppam, Cuddalore – 607 001. 2.The Assistant Commissioner (Commercial Taxes), Cuddalore Taluk Assessment Circle, 1, Commercial Taxes Buildings, Sub Jail Road, Manjakuppam, Cuddalore – 607 001. 1 cc to mr.S.P. Asokan, Advocate, Sr. 117531 cc to the Spl.Government Pleader, Sr. 11974 GP (CO)kk 17/3 W.P.No.5612 of 2015