S M YOUSOOF SAHIB Vs. ADDITIONAL COMMERCIAL TAX OFFICER EVASIONS VIJAYAWADA
LAWS(APH)-1963-9-13
HIGH COURT OF ANDHRA PRADESH
Decided on September 18,1963

S.M.YOUSOOF SAHIB Appellant
VERSUS
ADDITIONAL COMMERCIAL TAX OFFICER (EVASIONS), VIJAYAWADA, Respondents

JUDGEMENT

- (1.) THE petitioner is a dealer in pulses, paddy, rice etc., and carries on his business at Vijayawada. The Assistant Commercial Tax Officer, Vijayawada, visited the petitioner's shop on 4th July, 1957. He found in his inspection two bills evidencing the purchase and sale transactions. The first related to Rs. 4,496.75 nP. of 2nd July, 1957, and the second was for an amount of Rs. 7,697.36 nP. for 3rd July, 1957.
(2.) THE petitioner, however, in his monthly return of August included the said two transactions and submitted the return. He was taxed on that return which included the above-said two transactions. The tax seems to have been paid. After a lapse of considerable time on 16th February, 1959, a notice under section 14(4), Andhra Pradesh General Sales Tax Act, was served on the petitioner alleging that a portion of his turnover has escaped the assessment, the escaped assessment being Rs. 2,79,203.94 nP. This amount was arrived at by adding 50 per cent. of the turnover totalling Rs. 1,86,135.96 nP. The petitioner was subsequently served with a revised notice on 9th August, 1959, that the escaped turnover was not Rs. 2,79,203.94 nP. but Rs. 2,81,952.55 nP. An amount of Rs. 2,000 seems to have been added to the previous amount. For reasons best known to the authorities another revised notice was served on the petitioner on 1st May, 1961. This time a new formula was adopted in arriving at the escaped turnover. The two transactions mentioned above were taken as the basis multiplied by 82 days under the presumption that similar transactions were suppressed for all the 82 days and then the amount of Rs. 3,15,591.76 nP. was arrived at as the turnover of business which has escaped assessment to tax. Subsequent to that on 11th June, 1961, the petitioner was served with a notice asking him as to why penalty should not be levied, the amount of penalty being Rs. 9,322. On 10th July, 1961, the said penalty was directed to be paid by the petitioner. I should have mentioned that the assessment for the relevant period was made on 10th May, 1961. The petitioner thereafter preferred an appeal to the Deputy Commissioner, Guntur, which was made over to the Assistant Commissioner, as he was then competent to hear the appeals. When the appeal came for hearing on 10th July, 1961, the Assistant Commissioner directed that the tax must be paid before the appeal could be heard. The petitioner without paying the tax and arguing the appeal filed this petition under Article 226 of the Constitution on 10th July, 1961, impugning the order dated 10th May, 1961, given by the assessing authority. A preliminary objection was taken that as the appeal is pending before the Assistant Commissioner no recourse can be had to an application under Article 226 of the Constitution. It has now been a settled law that there is no rule with regard to certiorari, as there is with mandamus, that it will lie where there is no other equally effective remedy. Provided the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another adequate remedy, must be taken into consideration by the High Court, in arriving at a conclusion as to whether it should in exercise of its discretion issue a writ of certiorari to quash the proceedings and decisions of inferior Tribunals. Ordinarily the High Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ should be granted is a rule of policy, convenience and discretion rather than a rule of law. The High Court will readily issue a certiorari in a case where there have been reasonable grounds for the issue of the same. It must be remembered that the existence of other adequate legal remedy is not per se a bar to the issue of a writ of certiorari. In a proper case it is the duty of the High Court to issue a writ of certiorari to correct the errors of an inferior Tribunal called upon to exercise judicial or quasi-judicial functions. The petitioner cannot be compelled to adopt the other legal remedies even when he has a proper case under Article 226 of the Constitution. This apart, since the remedy provided by the Andhra Pradesh General Sales Tax Act is conditioned to the payment of tax, it cannot be said that the remedy is effective and expeditious. It has been held in Himmatlal v. State of Madhya Pradesh ([1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403), as follows : "Moreover since the remedy provided by the Act (C.P. and Berar Sales Tax Act) is of an onerous and burdensome character and before the assessee can avail of it he has to deposit the whole amount of the tax, such a provision can hardly be described as an adequate alternative remedy."
(3.) TO the same effect is a Bench decision of this court in Baroness Wilhelmine von Maltazan v. Collector of Customs, Visakhapatnam ((1957) 2 An. W.R. 207). In the light of what has been decided in the above-said cases, I do not think that the preliminary objection can be sustained. Section 14(4) confers powers on the Sales Tax Authorities to assess a dealer in regard to any turnover of business which has escaped assessment to tax. The material provision of that section is in the following terms : "14. (4) Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, or has been under-assessed or assessed at too low a rate, or where the licence fee or registration fee has escaped levy or has been levied at too low a rate, the assessing authority may, at any time within a period of four years from the expiry of the year to which the tax or the licence fee or registration fee relates, assess the tax payable on the turnover which has escaped assessment etc. etc." ;


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