TMI Blog2019 (9) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... stice M. Sundar For the Petitioner : Mr.K.Narayanan for Mr.N.Inbarajan For the Respondents : Mr.Mohammed Shaffiq, Special Government Pleader assisted by Ms.G.Dhanamadhri, Government Advocate. ORDER Mr.K.Narayanan, learned counsel representing the counsel on record for writ petitioner and Mr.Mohammed Shaffiq, learned Special Government Pleader who accepts notice on behalf of all the three respondents assisted by Ms.G.Dhanamadhri, learned Government Advocate are before this Court. 2. With consent of learned counsel on both sides, main writ petition is taken up, heard out and is being disposed of. 3. FACTUAL MATRIX IN A NUTSHELL : (a) Writ petitioner is a dealer under 'Tamil Nadu General Sales Tax Act, 1959' (hereinafter 'TNGST Act' for brevity) b) A revised assessment order, came to be passed by the first respondent against the writ petitioner. This revised assessment order is dated 27.02.2009 and bears Reference No.TNGST No:2100818/05-06. This revised assessment order was made under TNGST Act. c) Writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing cause to the writ petitioner before passing the impugned order as the impugned order is an order of refusal qua writ petitioner's application. b) In response to the above, submissions made by Revenue counsel are as follows: (i) Writ petitioner ought to have withdrawn the statutory appeal pending before the second respondent even before filing the application on 29.03.2012 under Samadhan Act by invoking Section 5(1) of Samadhan Act. (ii) Pendency of an appeal or revision is the criteria and therefore, the impugned order cannot be found fault with for holding that writ petitioner's application is not in conformity with Section 4 of Samadhan Act. 5. DISCUSSION AND DISPOSITIVE REASONING : a) This Court has carefully considered the rival submissions. b) After careful consideration of rival submissions, this Court considers it appropriate to take the second point urged by writ petitioner first. c) As alluded to supra, the second point urged by writ petitioner is that the third respondent has not given reasonable opportunity to the writ petitioner to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of filing application'. (Underlining made by this Court to supply emphasis and to highlight) k) There is no disputation or disagreement before this Court that the term 'Court' has not been defined either in the Samadhan Act or under TNGST Act. Therefore, one has to look for the definition of 'Court' elsewhere. For this purpose, this Court, referred to Wharton's Law Lexicon, Fifteenth Edition (Year 2009). After perusal of Wharton's Law Lexicon with regard to the term 'Court', this Court found that the following description of 'Court' in Wharton's Law Lexicon is most appropriate and the same reads as follows: 'Tribunals functioning under Industrial Disputes Act are not Courts in the strict sense of the term they have to discharge quasijudicial functions and as such are subject to the overriding jurisdiction of this Court under Article 136 of the Constitution. Their powers are derived from the statute that creates them and they have to function within the limits imposed there and to act according to its provisions. Those provisions invest them with many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat carries with it restraints and restrictions that are foreign to despotic power. n) In the considered view of this Court J.K.Iron and Steel Company case (as in Wharton's Law Lexicon) is instructive and it illumines the answer for the neat question as it comes out clearly that second respondent which is a statutory appellate authority under TNGST Act, does not qualify as a Court. It may have the trappings of the Court, but that by itself does not make it a Court. o) From the discussion thus far, it emerges clearly that 'Court' has to be a creature of the sovereign and not a creature of the statute. It also comes out clearly that a 'Court' should have discretion which is not in the nature of fettered discretion to perambulate within a predetermined perimeter. p) In the instant case, second respondent is clearly a statutory appellate authority created under TNGST Act and therefore, does not qualify as a 'Court'. q) There is one more aspect of the matter. A perusal of Section 10 of Samadhan Act captioned 'withdrawal of appeal and revision' makes it clear that the Samadhan statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been used simultaneously in the Samadhan Act as Section 4 talks about 'Court' and section 10 talks about 'appellate authority'; (c) It follows as a sequittur from the above that one term cannot be construed as another; (d) As there is no factual dispute that no matter is pending before a Court (in the case on hand), rejection of Samadhan application by citing section 4 which talks about 'court' (not appellate authority) is clearly untenable. u) Therefore, it follows as an inevitable and indisputable sequitur that there is no difficulty in accepting the submission of learned counsel for writ petitioner that the impugned order is bad for rejecting the Samadhan application of writ petitioner by refusing the settlement on the sole ground that statutory appeal is pending before the second respondent appellate authority. v) This Court did have a cursory look at the Revenue impact also. There is no disputation or disagreement that 40% of the tax payable qua the impugned order dated 27.02.2009, which is subject matter of challenge before the appellate authority has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
