WP/3838/2001 of TVL. VINCENTS (TIRUNELVELI) Vs REGISTRAR, TN TAXATION SPL on 5 December 2002

1. The Registrar,The Tamil Nadu TaxationSpecial TribunalRajaji Salai, Chennai - 1.

2. The Commercial Tax Officer,Palayamkottai. .... Respondents Petition under Article 226 of The Constitution of India praying forthe issue of writ of certiorari as stated therein.

For Petitioner : Mr. S. Ramanathan

For Respondents : Mr. T. Ayyasamy, Spl.G.P.

:O R D E R(ORDER OF THE COURT WAS MADE BY K.RAVIRAJAPANDIAN,J)

This writ petition is filed against the order of the SpecialTribunal dated 12.12.2000 made in TC (R) No.2787 of 1997.

2. The relevant assessment year is 1988-89. The petitioneris a manufacturer of soft drinks under the name and style of Vincents BottlersPvt. Ltd. The petitioner's place Of business was inspected by the inspectingofficers on 05.10.1989 and records were perused for case study. The assesseein his statement had admitted that he had consumed 6921 Kg of carbon di-oxideduring the assessment year. However, on record it was found that they have consumed 5329.095 KG of carbon di-oxide. The statistical inspector was of theopinion that the petitioner would have manufactured more quantity of softdrinks by the use of difference of 1591.905 Kgs of Carbon di-oxide outside theaccount. Hence statistical survey was conducted. On the basis of the survey,the assessing authority has worked out the use of 1591.905 Kgs of carbondi-oxide should produced 5,17,220/- bottles of soft drinks valued atRs.4,19,483/- at the rate of Re.0.93 for sweet drinks and at the rate ofRe.0.75 for soda water. The said quantity has been treated by the assessingofficer as suppressed turnover, taxable at 4%. The assessing officer alsolevied penalty at 1 1/2 times under Section 16(2) of the TNGST Act. Furtherhe also levied penalty under Section 22(2) of the TNGST Act for a sum ofRs.447/-.

3. The assessee had carried the matter on appeal to the first appellate authority. The actual suppression and the penalty of 150% wasupheld by the first appellate authority. However, the penalty under Section22(2) has been remanded for certain verification. In the second appeal beforethe appellate tribunal, the appellate tribunal took the view that thestatistical survey conducted by the Department in the subsequent year withoutfurther evidence could not be treated as basis to treat the outcome of thesurvey as suppression and there was no material for making a revision ofassessment by the assessing authority and in that view of the matter set asidethe revision of assessment made by the assessing officer. The revenue tookthe matter as revision before the special tribunal.

4. The special tribunal after considering the argument advanced before it and the finding arrived at by the authorities, set asidethe order of the appellate tribunal by restoring the order of the AppellateAssistant Commissioner. While doing so, the special tribunal reduced thepenalty under Section 16(2) to 50%. That order is now put in issue in theabove writ petition.

5. Mr. Ramanathan, learned counsel appearing for the petitioner has made an elaborate argument as to the factual matter of thecase, to the effect that the survey has been conducted during single day andin respect of a single person, whereas the assessee was having more than 100machines operated manually every day by 100 person with varying capacity andexpertise and thereby the turn out would be varying according to the capacityand expertise of each person. He further contended that the authorities belowhave accepted that there might be variation of turn out of the work andwastage from 5% to 10%. That accepted percentage of waste of carbon di-oxidegas has not been given effect to by the authorities while calculating theoutcome.

6. The learned special Government Pleader contended that the statistical survey has been conducted during the inspection and it has beenaccepted by the assessee that the actual consumption was more than therecorded consumption of carbon di-oxide. Hence that amounts to suppression.When a suppression was there, it is always open to the assessing authority to make a best judgment assessment. The assessing authority is the best judge.There may be certain variation and that variation cannot be considered forsetting aside the order passed by the authority unless or otherwise itmanifest that best judgment passed by the assessing officer is arbitrary. Hefurther submitted that only after taking into consideration of the wastage andafter giving allowance to the percentage of wastage the authorities belowfixed the suppression at 30%. Hence, there is absolutely no need forinterference from this Court while exercising the power under Article 22 6 ofthe Constitution of India.

7. We heard the argument on either side and perused thematerial on record.

8. It is very well settled that this Court is not an

appellate authority under the provisions of the TNGST, which is a specialenactment. However this Court can exercise its jurisdiction under Article 226, when the Court finds on fact that orders are passed by inferior courts ortribunals is without jurisdiction, or in excess of it, or as a result offailure to exercise jurisdictions. This Court also interfere where exerciseof jurisdiction is conferred on it, the court or tribunal acts illegally orimproperly, as for instance, it decides a question without giving anopportunity to be heard to the party affected by the order, or where theprocedure adopted in dealing with the dispute is opposed to principles ofnatural justice. There is, however, no doubt that the jurisdiction underArticle 226 is a supervisory jurisdiction and the court exercising it is notentitled to act as an appellate court. This limitation necessarily means thatfindings of fact reached by the inferior court or tribunal as a result of theappreciation of evidence cannot be reopened or questioned before this Court.An error of law which is apparent on the face of the record can be correctedby a writ, but not an error of fact, however, grave it may appear to be. Inregard to a finding of fact recorded by the tribunal, a writ of certiorari canbe issued if it is shown that in recording the said finding, the tribunal haderroneously refused to admit admissible and material evidence, or haderroneously admitted inadmissible evidence which has influenced the impugnedfinding. Similarly if a finding of fact is based on no evidence, that wouldbe regarded as an error of law which can be corrected by a writ of certiorari.In dealing with this category of cases, however, we must always bear in mindthat a finding of fact recorded by the tribunal cannot be challenged inproceedings for a writ of certiorari on the ground that the relevant andmaterial evidence adduced before the tribunal was insufficient or inadequateto sustain the impugned finding. The adequacy or insufficiency of evidenceled on a point and inference of fact to be drawn from the said finding arewithin the exclusive jurisdiction of the Tribunal, and the said points cannotbe agitated before a writ court. It is within these limits that thejurisdiction conferred on the High Courts under Article 226 to issue a writ ofcertiorari can be legitimately exercised. The above said limitation or theexercise of the jurisdiction under Article 226 of the Constitution of India isthe law as laid down by the Constitution Bench of the Apex Court in SYEDYAKOOB VS. K.S. RADHAKRISHNAN AND OTHERS reported in (1964) 5 SCR 64

9. Even on the facts, there is absolutely no materials made available before the authorities and the contention now raised was never beenraised before the authorites except the argument made by Mr. Ramanathan as tothe variation of wastages per person to person. The assessee had not eventaken any steps to request the authorities to conduct another survey withanother person so as to prove the wastage or variation to person to person.When that being the position, the mere argument cannot form basis forrendering a decision on it. In the absence of any materials, we can onlyappreciate the argument by the learned counsel rather we cannot interfere withthe judgment of the authorities below for the sake of the argument advanced.

10. For the reasons above state, we declined to interferewith the order of the authorities below. Writ petition is dismissed.However, there will be no order as to costs. Consequently, W.M.P.No.5439 of2001 is also dismissed.

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To1. The Registrar,The Tamil Nadu TaxationSpecial TribunalRajaji Salai, Chennai - 1.

2. The Commercial Tax Officer,Palayamkottai.