Madras High Court
Hotel Seaview vs The Commercial Tax Officer (Fact) on 24 June, 2014
Author: R.Subbiah
Bench: R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.06.2014 Coram THE HONOURABLE MR.JUSTICE R.SUBBIAH Writ Petition (MD) No.1786 of 2014 And M.P.(MD).No.2 of 2014 Hotel Seaview Represented by its Partner, M.Gopi, 2/17E East Car Street, Kanyakumari. .. Petitioner Vs. 1.The Commercial Tax Officer (FACT), Nagercoil (Rural) Nagercoil. 2.The Appellate Assistant Commissioner (CT), Tirunelveli. . . Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records on the file of the first respondent herein in his TNTNLH 02962/2009-10, dated 09.10.2013 and to quash the same. !For Petitioner : Mr.N.Inbarajan For Respondents : Mr.R.Karthikeyan AGP :ORDER
The writ petition is filed by the petitioner for issuance of Certiorari to call for the records on the file of the first respondent herein in his TNTLH 02962/2009-10, dated 09.10.2013 and to quash the same.
2. The petitioner is running a lodging house by name Hotel Seaview at Kanyakumari and he is a registered dealer under the Tamil Nadu Tax on Luxuries Act, 1981. On 29.05.2010, there was an inspection by the Enforcement Wing Officers and certain defects were pointed out. Certain records were recovered from the petitioner by issue of D7 slip. The petitioner made a statement explaining the records recovered which were detained by the enforcement wing authorities. The petitioner has also not accepted any suppression of any amount by way of tax or non accounting of the accommodation bills. But, the first respondent without verification of any of the records recovered by the enforcement wing authorities during the inspection on 29.05.2010, issued notices proposing to make estimation based on the D3 proposal. Even though the assessments were completed upto 2008- 2009, no notice was issued for producing the accounts for the completed assessment and for the other regular assessments for the year 2009-10 onwards. But, straightaway the respondent herein based on the D3 proposal issued the notice. Even though the petitioners filed their objection to the said proposal, they have not been provided an opportunity of being heard. In fact, the petitioner filed a detailed objection on 09.04.2011 and by their letter dated 24.10.2011 after the receipt of the D7 records. Thereafter, the petitioners were issued a notice dated 23.08.2013 in which there is a direction to file objection along with necessary supporting documents as per the directions of this Court, within 15 days from the date of receipt of the notice. But, the respondent has not considered any one of the objections raised by the petitioner with regard to D7 records, but he was merely carried away by the direction of the Joint Commissioner (CT), Enforcement. This is apparent from the impugned order in which the proceedings of the Commercial Tax Officer (Enforcement) Sivakasi is extracted in which it is specifically averred that D3A proposal of the Joint Commissioner (CT) Enforcement, Tirunelveli has been approved by his proceedings dated 17.02.2011. Hence, the petitioner has come forward with the present writ petition.
3. Learned counsel for the petitioner placing reliance on the decision of this Court reported in 146 STC 642 (Madras Granites (P) Ltd. v. Commercial Tax Officer) submitted that the impugned order has been passed by the first respondent totally based on D3 proposal. When the higher officer has directed the assessing officer to complete the assessment on the basis of the proposal in D3 form, the assessing officer, who is lower in rank in the hierarchy of officers, is bound by the said direction, has not independently applied his mind, but adopted the sales turnover as found in D3 proposal and also levied the penalty in the manner indicated in D3 proposal. It is well settled that the assessing officer is a quasi judicial authority and in exercising his quasi judicial function of completing the assessment, he is not bound by the instructions or directions of the higher authorities.
4. In the instant case, the impugned order has been passed totally relying upon D3 proposal forwarded by the enforcement wing. Since the assessing officer acted on the basis of the direction, the impugned order is liable to be quashed. Accordingly, the impugned order dated 09.10.2013 is quashed. The petitioner is directed to deposit Rs.5,00,000/- (Rupees five lakhs only) towards arrears of tax, within three weeks from the date of receipt of a copy of this order. On receipt of such payment, the first respondent is directed to pass assessment order afresh in accordance with law after giving an opportunity to the petitioner. The writ petition is allowed with the above direction. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Commercial Tax Officer (FACT), Nagercoil (Rural) Nagercoil.
2.The Appellate Assistant Commissioner (CT), Tirunelveli.