Writ Petition No. 2818 of 2012 with Notice of Motion [L] No. 214 of 2013. Case: Tata Sons Limited and Ors. Vs The State of Maharashtra and Ors.. Bombay High Court

Case Number:Writ Petition No. 2818 of 2012 with Notice of Motion [L] No. 214 of 2013
Party Name:Tata Sons Limited and Ors. Vs The State of Maharashtra and Ors.
Counsel:For Appellant: Aspi Chinoy, Senior Counsel, Astad Randeria, R.K. Satpalkar, Pinkesh Shah i/b. Mulla and Mulla and C.B. & C. and For Respondents: A.A. Kumbhakoni, Special Counsel a/w V.A. Sonpal and S.B. Lolage, Advs.
Judges:S. C. Dharmadhikari and S. P. Deshmukh, JJ.
Issue:Bombay Sales Tax Act, 1959 - Section 39; Constitution of India - Articles 226, 326, 366, 366(29A), 366(29A)(d)
Judgement Date:January 20, 2015
Court:Bombay High Court
 
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Judgment:

S. C. Dharmadhikari, J.

1. By this Writ Petition under Article 226 of the Constitution of India, the petitioners are seeking the following reliefs:

(a) this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction;

(i) quashing and setting aside the said impugned orders being exhibits C1 to C4, D1 to D4, E hereto and K4-A, K4-B, K4-C, K4-D, K5-A, K-5-B, K-5-C, K-6-A, K-6-B and K6-C."

(ii) quashing and setting aside the said Notices dated July 17, 2012 for recovery of the alleged sales tax dues for the period 1998-2002 being exhibits F1 to F4 hereto;

(iii) quashing and setting aside the said Orders dated August 9, 2012 for levy of interest and penalty in respect of the said alleged sales tax dues for the period 1998-2002 being exhibits G5 to G8 hereto;

(iv) quashing and setting aside the said Assessment Notices dated March 15, 2011 for levy of sales tax for the years 2002-2005 being exhibit H1 to H3 hereto;

(v) quashing and setting aside the said Notice dated 13th August, 2012 issued under Section 39 of the Bombay Sales Tax Act, 1959 by Respondent No. 2 to the Branch Manager, Canara Bank, Fort Market Branch being Exhibit C8 hereto.

(b) this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction directing Respondent No. 2 to refund to Petitioner No. 1 an amount of Rs. 2,66,11,200/- being the total amount of part payment of sales tax paid in respect of the Assessment Order dated August 2, 2003 along with interest thereon at a rate which this Hon'ble Court deems fit;

2. At the outset Mr. Kumbhakoni, learned Senior Counsel appearing for the respondents invites our attention to the order passed by this Court on 5th February, 2014 and submits that though the Writ Petition is admitted the issue of its maintainability has been kept open.

3. The petitioners according to the respondents have an alternate and equally efficacious remedy of seeking reference under Section 61(1) of the Bombay Sales Tax Act, 1959. They have not availed of that remedy. Rather they availed of that remedy during the pendency of this Writ Petition, but, their application seeking a reference on certain questions of law for opinion and answer of this Court was dismissed by the Tribunal on 15th January, 2013 holding that it is barred by limitation. Mr. Kumbhakoni has submitted that the objection, therefore, can still be raised.

4. Mr. Kumbhakoni submits that the conduct of the petitioners is such that they should not be allowed to invoke this Court's equitable and discretionary jurisdiction. He relied upon the fact that Second Appeals were dismissed by the Tribunal on 7th June, 2012. The notices for recovery of tax were issued calling upon the petitioners as to why the recovery should not be effected with deferred penalty. Four orders were passed pursuant to this notice on 9th August, 2012 and Rs. 7 Crores was the amount determined thereunder.

5. Mr. Kumbhakoni submits that the statutory period of limitation of ninety days is prescribed under Section 61 for making an application requesting the Tribunal to refer the questions of law for opinion and answer of this Court expired. However, on the very next day, namely, 14th September, 2012 a Writ Petition in this Court has been filed, namely, the present Writ Petition. On 2nd November, 2012, an order is passed in the present Petition wherein a statement is recorded that in view of availability of the alternate remedy the petitioners would invoke it within two weeks from the date of the order. The present Writ Petition was kept pending. Mr. Kumbhakoni, therefore, submits that the petitioners are accepting the fact that the remedy provided under Section 61 is not only alternate but equally efficacious and they deliberately did not invoke it earlier but availed of purportedly the same after the limitation for availing it had expired. This conduct of the petitioners is intentional and deliberate. The Reference Application filed belatedly could not have been entertained by the Tribunal and it was rightly dismissed on 15th January, 2013. Thereafter the petitioner is pursuing this Writ Petition. Mr. Kumbhakoni submits that the petitioners are a Corporate entity and advised by legally trained and competent minds. They are not illiterate or downtrodden persons who would on account of their financial condition or situation do not have access to competent legal advice or assistance. In such circumstances, he would submit that in the absence of a statement in the Writ Petition that the remedy is not available or if available is not efficacious all the more this Writ Petition should be dismissed. Further, there is no explanation forthcoming as to why the petitioners purported to avail of the remedy during the pendency of the Writ Petition. The petitioners having availed of it and not succeeded therein now should not be allowed to pursue the Writ Petition.

6. Mr. Kumbhakoni has relied upon a judgment of the Kerala High Court in that regard passed in Writ Appeal No. 715 of 2005 decided on 20th October, 2005 in the case of Assistant Commissioner of Central Excise & Ors. Vs. Krishna Poduval & Ors.

7. On the other hand, Mr. Chinoy, learned Senior Counsel appearing for the petitioners submits that the Writ Petition is now admitted. There are extensive pleadings on record on the merits of the Writ Petition. Further, an application under Section 61(1) of the BST Act, 1959 cannot be termed as an efficacious remedy because the application may be filed by the petitioners, however, it is the prerogative of the Tribunal to refer the questions of law for opinion and answer of this Court. It is not as of right that the petitioners can claim that the questions be referred. In these circumstances, when it is for the Tribunal to decided whether any questions of law arise or if they arise they have to be referred for opinion and answer of this Court, then, the Writ Petition should not be dismissed on the ground of availability of an alternate remedy. Further, the rule that this Court would not entertain a Writ Petition in the face of alternate and equally efficacious remedy does not create a bar. That does not amount to a absolute prohibition but it is a rule of prudence. It has been carved out judicially and will not prevent this Court from entertaining a Writ Petition in the face of such remedies being available. In such circumstances, he would submit that there is nothing deliberate or intentional about the act of the petitioners and the questions raised in the Writ Petition are going to the root of the case that we should entertain the Writ Petition.

8. Having heard learned Senior Counsel on this point, we are not impressed by the objections raised by Mr. Kumbhakoni. The order passed on 5th February, 2014 has been perused by us in its entirety. This Court despite such an objection proceeded to grant rule on the Writ Petition and heard parties on the point of interim relief. After hearing them extensively the Court refused the interim relief. Against the order of this Court, the petitioners approached the Hon'ble Supreme Court by filing a Special Leave Petition being Petition for Special Leave (Civil) No. 4701 of 2014. That was placed before the Hon'ble Supreme Court on 14th February, 2014 and the Hon'ble Supreme Court proceeded to dismiss it but at the same time requested this Court to dispose of the Petition as early as possible. In the light of the same and finding that the availability of an alternate equally efficacious remedy does not mean there is an absolute bar in entertaining a Writ Petition under Article 226 of the Constitution of India that we reject the preliminary objection raised by Mr. Kumbhakoni. We are not entertaining it at this belated stage as the Writ Petition cannot be dismissed on this short point. Having found that there are extensive pleadings of both sides including the written submissions it will not be proper to shut out the petitioners on the availability of the alternate remedy. Even otherwise we do not find that in the given facts and circumstances the remedy resorted to under Section 61(1) of the BST Act, 1959 would be efficacious and complete. Hence the preliminary objection is rejected.

9. Now on the merits of the case.

10. The present Writ Petition has been instituted by the petitioners by relying upon the fact that the first petitioner a Company incorporated under the then Companies Act, 1913 and registered under the Indian Companies Act, 1956 is the principal or holding company in the group of companies mainly referred to as TATA Companies and collectively belonging to House of TATA. TATA Companies are engaged in diverse business activities in varied sectors, namely, steel, automobiles, information technology, chemicals, tea/coffee, telecommunication, exports etc.. The business activities are conducted by the subsidiaries and companies promoted by the petitioner No. 1. These subsidiaries/group companies have already represented to the public at large their affiliation to the House of TATA. Such affiliation has been represented for several decades now by use of the word TATA as part of the name of the companies or by using the word TATA on various products of the companies.

11. In the year 1998 with a view to systematically develop, promote and enhance the brand equity in the word TATA as well as to legally protect the same, the first petitioner entered into an agreement with the TATA companies called the TATA Brand Equity and Business Promotion Agreement. Said agreement provides for various initiatives to be undertaken by the petitioner No. 1 for protecting, enforcing and enhancing the image and goodwill of TATA of the TATA name and its brand equity. This agreement provides detailed guidelines for use of the TATA name and the trade marks in the course of business by the subscribing companies. The...

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