TMI Blog2014 (9) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ice are violated, this court can exercise its powers, under article 226 of the Constitution of India, to grant the relief to the petitioner, by setting aside the impugned order, especially, when a fundamental right of a person to carry on its trade, occupation or business is infringed. It is not open to the respondent to claim that his impugned order, dated August 27, 2010, is only a statement of the factual position, as it existed on the date of the passing of the said order. It is also noted that the petitioner had requested for the renewal of registration, for the year 2011-12, by paying the necessary fee. It is also seen that the petitioner had made a request for renewal of the registration by a representation, dated April 29, 2011, along with the fee payable for such registration, by way of a demand draft. However, the renewal of registration had not been granted to the petitioner, till date. By an order, dated September 16, 2010, the Deputy Commercial Tax Officer (Registration), Puducherry, had stated that the registration made in favour the petitioner is active. Therefore, the petitioner was permitted to file the return and to pay the tax. It had also been stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by the authorities concerned. In such circumstances, the petitioner had challenged the said orders before the appellate authority concerned. It had been further stated that the returns filed by the petitioner are correct and the entire admitted tax has been paid. 5. It had been stated that the sale of lubricants should be treated only as second sale, as they had been purchased only from the customers' outlet. However, before the assessment orders had become final, as the appeals filed by the petitioner were pending adjudication, the respondent had cancelled the registration of the petitioner, by his Order No. 800/DCTO/(RC)/ 2009-10, dated November 9, 2009. The said order had been passed without providing sufficient time to the petitioner to submit its objections. Pursuant to the order passed by the respondent, cancelling the registration of the petitioner, the Indian Oil Corporation had refused to supply fuel to the petitioner bunk. In such circumstances, the petitioner had filed a writ petition before this court, in W.P. No. 24605 of 2009, challenging the order of the respondent. 6. This court had allowed the writ petition, by its order, dated December 23, 2009, and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010, as infructuous. 8. After the dismissal of the writ petition by this court, the respondent, by its order, dated August 27, 2010, had stated that the petitioner cannot claim itself as a registered dealer, under the provisions of the Puducherry Value Added Tax Act, 2007, and the Central Sales Tax Act, 1956, and thereby, carry on the resale of the petroleum products in the Union Territory of Pudhucherry. He had stated in the said impugned order that the earlier order, dated February 23, 2010, cancelling the registration certificate granted in favour of the petitioner is in operation, in view of the dismissal of the writ petition, in W.P. No. 3904 of 2010. Therefore, the petitioner had preferred the present writ petition challenging the order of the respondent, dated August 27, 2010. 9. The learned counsel appearing on behalf of the petitioner had submitted that the impugned order of the respondent, dated August 27, 2010, is arbitrary, illegal and void. He had submitted that the impugned order of the respondent is in violation of the principles of natural justice. The respondent had not issued any notice to the petitioner before passing the said order. No opportunity of pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urb the business activities of the petitioner for non-payment of the disputed tax, especially, when the petitioner had paid huge sums of money as the admitted tax. 12. The learned counsel appearing on behalf of the petitioner had also submitted that certain other similarly placed persons, as that of the petitioner, have been permitted to pay the arrears of tax in instalments and they have been permitted to run their business without any impediment. 13. The learned counsel appearing on behalf of the petitioner had also submitted that the respondent had not stated the actual quantum of the arrears of tax due to be paid by the petitioner. Further, it is not open to the respondent to state in his impugned order, dated August 27, 2010, that the registration of the petitioner stands cancelled, both under the Central Sales Tax Act, 1956, as well as the Puducherry Value Added Tax Act, 2007. According to rule 9(1) of the Central Sales Tax (Registration and Turnover) Rules, 1957, the notified authority shall provide to the dealer the opportunity of being heard before amending or cancelling the certificate of registration. However, in the present case, the respondent had cancelled the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , stating that the earlier order, dated February 23, 2010, cancelling the registration certificate granted in favour of the petitioner is in operation. Hence, the petitioner cannot claim itself to be a registered dealer under the provisions of the Puducherry Value Added Tax Act, 2007, and the Central Sales Tax Act, 1956. Therefore, the request of the petitioner for renewal of the registration cannot be granted. The said order, being a mere intimation of a prevailing factual position, with regard to the registration of the petitioner, cannot give right to a cause of action to the petitioner to challenge the same. 17. The learned Special Government Pleader appearing on behalf of the respondent had also submitted that the petitioner, by evading payment of tax, had misappropriated large sums of public money. Therefore, no sympathy can be shown by this court in favour of the petitioner. The renewal granted in favour of the petitioner, for the year 2010-11, can only be in respect of the Puducherry Value Added Tax Act, 2007, and therefore, there cannot be a renewal under the Pondicherry General Sales Tax Act, 1967. In view of the dismissal of the writ petition filed by the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions contained in law, the same cannot be done. Equity jurisdiction can be exercised only when no law operates in the field. 27. A court of law cannot exercise its discretionary jurisdiction de hors the statutory law. Its discretion must be exercised in terms of the existing statute. 28. In Shamsu Suhara Beevi v. G. Alex [2004] 8 SCC 569, this court, while dealing with a matter relating to grant of compensation by the High Court under section 21 of the Specific Relief Act in addition to the relief of specific performance in the absence of prayer made to that effect, either in the plaint or amending the same at any later stage of the proceedings to include the relief of compensation in addition to the relief of specific performance, observed: (SCC page 576, para 11) '11. . . . Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable considerations court cannot ignore or overlook the provisions of the statute. Equity must yield to law'. 19.3. In Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) [1994] 2 SCC 718, the Supreme Court had held as follows: 11. At this juncture w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 19.5. In Pepsu Road Transport Corporation v. Rawel Singh [2008] 4 SCC 42, the Supreme Court had held as follows: 15. With regard to supply of documents, record reveals that the documents had been supplied to the workman and the said fact had been admitted by him. His case, however, was that due to heavy rain, all the documents were destroyed which necessitated supply of fresh documents. But as observed by the enquiry officer, the workman was asked as to whether he required any document but the workman replied in the negative. In our opinion, he could hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. Ignorance of law is no excuse much less by a person who is a law graduate himself. 19.7. In Commissioner of Customs Central Excise v. Hongo India (P) Ltd. [2009] 24 VST 298 (SC); [2010] 2 GSTR 305 (SC); [2009] 5 SCC 791, the Supreme Court had held as follows (page 307 in 24 VST): 30. In the earlier part of our order, we have adverted to Chapter VIA of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under section 35G and reference application to the High Court under section 35H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. . . 19.8. In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement [2010] 4 SCC 772, the Supreme Court had held as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing of remedy under article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this court, which every High Court is bound to keep in view while exercising power under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it . . . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. [1919] AC 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant Co. Ltd. [1935] AC 532 (PC) and Secy. of State v. Mask Co. [1939-40] 67 IA 222. It has also been held to be equally applicable to enforcement of rights, and has been followed by this court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 19.10. In Sudhir Kumar Consul v. Allahabad Bank [2011] 3 SCC 486, the Supreme Court had held as follows: 31. We have sympathies for the appellant but, in a society governed by the rule of law, sympathies cannot override the rules and regulations. We may recall the observations made by this court while considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It is also seen that the petitioner had made a request for renewal of the registration by a representation, dated April 29, 2011, along with the fee payable for such registration, by way of a demand draft. However, the renewal of registration had not been granted to the petitioner, till date. 24. It is also seen that, as per sub-section (9) of section 23 of the Pondicherry General Sales Tax Act, 1967, no application for registration and no renewal under the section shall be refused, and no order shall be made cancelling, modifying or amending any registration of the certificate, unless the concerned dealer had been given an opportunity of being heard. Further, cancellation of the registration can be made only in the prescribed manner, under section 12 of the Puducherry Value Added Tax Act, 2007. 25. Further, under rule 8 of the Puducherry Value Added Tax Act, 2007, the registering authority shall have to immediately return the registration certificate, with due endorsement of renewal, unless such reason for withholding the registration certificate and such reason shall be recorded. However, it is seen that the respondent had not followed the procedures prescribed for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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