TMI Blog2009 (3) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner had collected sales tax from its customers in the three assessment years aforementioned. We consider it, appropriate, therefore, to remand the matter back to the first respondent-Commercial Tax Officer, who shall examine the records for these three assessment years, and any other records which the petitioner may choose to produce before him to establish that they had not collected sales tax, and, thereafter, pass orders afresh in accordance with law. - W.P.M.P. No. 843 of 2009 & 20559 of 2008 - - - Dated:- 3-3-2009 - ANIL R. DAVE C.J. AND RAMESH RANGANATHAN , JJ. ORDER:- The order of the court was made by RAMESH RANGANATHAN J. The petitioner, a small-scale industrial unit engaged in the business of production of oxygen gas and effecting sales thereof duly filling it in cylinders, obtained the final eligibility certificate, under G.O. Ms. No. 108 dated May 20, 1996, on June 15, 1999. The said certificate entitled the petitioner to claim the benefit of sales tax holiday for Rs. 1,33,73,140 for a period of seven years from February 11, 1999 till February 10, 2006, apart from other incentives. Clause 11(vi) thereof disentitled the petitioner from collecting sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries where a process of manufacture took place subject to their not having been excluded under the annexure, that the liability to pay tax, arising out of cancellation of incentives, would start from the date on which the orders become operative, that, in view of clause (vi) of the final eligibility certificate, small-scale industrial units were not only disabled but, in fact, were prohibited from collecting tax, that it was impermissible to compel them to pay tax which they did not collect and that it was open to the Government to recover tax from such units if it was found that they had collected sales tax on such product during the subsistence of the incentives. Following the Full Bench judgment in Panchalingal Carbonic Gas Pvt. Ltd. [2005] 141 STC 161; 40 APSTJ 41, a Division Bench of this court, in Jai Jagannath Gases Pvt. Ltd. v. State of Andhra Pradesh (W.P. No. 22175 of 2000), passed the following order on September 2, 2005: The subject-matter that arises for consideration in this writ petition is squarely covered by an authoritative pronouncement of this court in Panchalingal Corbonic Gas Pvt. Ltd. Kurnool v. State of Andhra Pradesh [2005] 141 STC 161 (AP) [FB]; [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed without authority of law and without jurisdiction, it was non est and the assessing authority was not bound to give effect to it while computing the assessments and, therefore, he had passed assessment orders for the three assessment years levying tax of Rs. 31,62,880. The first respondent would state that the assessment order had become final as no appeals were preferred thereagainst and since, despite repeated demands, the petitioner did not clear the dues, he was constrained to issue the impugned notice to recover the tax legitimately due to the Revenue. The first respondent would contend that, as the assessee was liable to pay sales tax, the question whether they had collected tax from their customers or not was of no consequence and that the petitioner, being an assessee, had to clear their tax dues. What was under challenge in the writ petition was only the garnishee notices dated September 6, 2008 and August 22, 2008 and not the assessment orders for the three years 2000-01 to 2002-03. Sri S.R. Ashok, learned Senior Counsel for the petitioner, would contend that, as the assessment orders were passed during the period when the interim order passed in W.P. No. 22175 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a nullity, but the court may refuse to quash it because of some legal reason. In any such case the 'void' order remains effective and is, in reality, valid. (Wade: Administrative Law 6th edition Page 352). On being asked whether the assessment orders could be set aside, even in the absence of a challenge thereto, learned Senior Counsel sought time to have a petition filed seeking amendment of the prayer. Thereafter, W.P. M.P. No. 843 of 2009 was filed to amend the prayer in the writ petition and a declaration is now sought that the assessment orders for the three years 2000-01, 2001-02 and 2002-03, being in violation of the interim order dated November 17, 2000 in W.P.M.P. No. 28204 of 2000 and final order dated September 2, 2005 in (Jai Jagannath Gases Pvt. Ltd. v. State of Andhra Pradesh) W.P. No. 22175 of 2000, was void and non est, that it was required to be set aside and that the respondent be interdicted from recovering the tax payable under the assessment orders for the three years. The matter was adjourned to enable the learned Government Pleader to obtain instructions in this W.P.M.P. At the request of both the counsel, the writ petition and the W.P.M.P. were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh W.P. No. 22175 of 2000. The first respondent, being a party to W.P. No. 22175 of 2000, could not have acted contrary thereto. While it is true that an assessee is liable to pay sales tax and the question whether he had collected tax from his consumers is of no consequence, (American Remedies Pvt. Ltd. v. Government of Andhra Pradesh [1999] 113 STC 400 (SC), K. Premerajan [2008] 14 VST 202 (Ker)), it must also be borne in mind that a judgment of the High Court under article 226, passed after a hearing on merits, must bind the parties till set aside in appeal. (Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [1990] 2 SCC 715, U.P. State Road Transport Corporation v. State of U.P. [2005] 1 SCC 444). When a particular decision has become final, and binding between the parties, it cannot be set at naught even on the ground that such a decision is violative of the provisions of the Constitution. So far as the parties are concerned, they will always be bound by the said decision. (Supreme Court Employees Welfare Association v. Union of India AIR 1990 SC 334). An order passed by a court having jurisdiction over the subject-matter, and over the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point creates a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment. (Swamy Atmananda v. Swami Bodhananda AIR 2005 SC 2227, Ishwar Dutt [2005] 7 SCC 190). Issues which have been concluded inter-parties cannot be raised again in proceedings inter-parties. (State of Haryana v. State of Punjab [2004] 12 SCC 673). W.P.M.P. No. 843 of 2009 is ordered and, consequently, the prayer in the writ petition stands amended. The assessment orders for the three years 2000-01 to 2002-03, being contrary to the orders passed by this court in W.P. No. 22175 of 2000 which orders, both interim and final, are binding inter-parties, would necessitate a declaration that they are void. The assessment orders are, accordingly, quashed. This, however, is not end of the matter. In Panchalingal Carbonic Gas Pvt. Ltd. [2005] 141 STC 161; 40 APSTJ 41, (which judgment was followed by the Division Bench in (Jai Jagannath Gases Pvt. Ltd. v. State of Andhra Pradesh W.P. No. 22175 of 2000 da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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