Madras High Court
Kurlon Enterprises Limited vs Commercial Tax Officer on 28 September, 2021
Author: M.Sundar
Bench: M.Sundar
W.P.Nos.17528 & 17529 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.09.2021
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.Nos.17528 & 17529 of 2021
&
WMP.Nos.18629 & 18631 of 2021
Kurlon Enterprises Limited
Rep. By its Area Business Manager
No.194, 1st Floor, Pycrofts Road
Royapettah, Chennai – 600 014 ... Petitioner
in both WPs
Vs
Commercial Tax Officer,
Thiruvallikeni Assesment Circle
Chennai - 600 035. ... Respondent
in both WPs
Prayer in both WPs: Petition filed under Article 226 of the Constitution
of India to issue a Writ of Certiorarified Mandamus or any other
appropriate writ, direction or order calling for the records of the
respondent in his proceedings in TIN 33160680798/2011-12 and TIN
33160680798/2012-13 and quash this impugned assessment order
passed on 12.03.2021 and direct the respondent to pass fresh orders after
verifying the details filed by the petitioner on 09.03.2021 and pass fresh
orders after giving an opportunity of personal hearing to the petitioner.
For Petitioner : Ms.Hemamalini
for Mr.C.Baktha Siromoni
For Respondent : Ms. Amirta Dinakaran
Government Advocate
https://www.mhc.tn.gov.in/judis/
1/20
W.P.Nos.17528 & 17529 of 2021
COMMON ORDER
Captioned writ petitions and 'Writ Miscellaneous Petitions' ('WMPs' in plural and 'WMP' in singular for the sake of brevity) thereat are in the Admission Board.
2. Mr.C.Baktha Siromoni, learned counsel for writ petitioner is before this Virtual Court. Learned counsel submits that captioned matter arises under 'Tamil Nadu Value Added Tax Act, 2006 (Tamil Nadu Act 32 of 2006)', which shall hereinafter be referred to as 'TNVAT Act' for the sake of convenience and clarity.
3. 'Two orders pertaining to escaped turnover made under Section 27 of TNVAT Act qua Assessment Years 2011-12 and 2012-13, both dated 12.03.2021 bearing reference TIN 33160680798/2011-12 and TIN 33160680798/2012-13' (hereinafter 'impugned orders' in plural and 'impugned order' in singular for the sake of convenience and clarity) have been called in question in the captioned writ petitions.
4. To be noted this is the second round of litigation. https://www.mhc.tn.gov.in/judis/ 2/20 W.P.Nos.17528 & 17529 of 2021
5. Learned counsel commenced by saying that the impugned orders are clearly vitiated by limitation as the same are beyond six years from the date of assessment. To be noted, deemed assessment with regard to first impugned order was on 31.03.2012 and deemed assessment with regard to second impugned order was on 31.03.2013. Therefore, six years elapsed qua first impugned on 31.03.2018 and qua second impugned order on 31.03.2019. In my considered view, learned counsel cannot even be heard to make this submission on limitation as the same has been raised in the previous round of litigation and the same has been conclusively decided by another Hon'ble single Judge of this Court vide a common order made in W.P.Nos.2793, 2797, 2798 and 2800 of 2020 dated 02.11.2020. A scanned reproduction of the order is as follows:
https://www.mhc.tn.gov.in/judis/ 3/20 W.P.Nos.17528 & 17529 of 2021 https://www.mhc.tn.gov.in/judis/ 4/20 W.P.Nos.17528 & 17529 of 2021 https://www.mhc.tn.gov.in/judis/ 5/20 W.P.Nos.17528 & 17529 of 2021 https://www.mhc.tn.gov.in/judis/ 6/20 W.P.Nos.17528 & 17529 of 2021 https://www.mhc.tn.gov.in/judis/ 7/20 W.P.Nos.17528 & 17529 of 2021 https://www.mhc.tn.gov.in/judis/ 8/20 W.P.Nos.17528 & 17529 of 2021 https://www.mhc.tn.gov.in/judis/ 9/20 W.P.Nos.17528 & 17529 of 2021
6. There is no disputation or disagreement that the above order of Hon'ble single Judge has been given legal quietus and has attained finality as there is no intra-court appeal. On the contrary, both sides have acted upon the order. To be noted, it is the specific case of learned counsel for writ petitioner that pursuant to the aforementioned earlier https://www.mhc.tn.gov.in/judis/ 10/20 W.P.Nos.17528 & 17529 of 2021 order, the writ petitioner went before the Commercial Tax Officer on 07.12.2020 for personal hearing (paragraph 9 of the earlier order, which has been scanned and reproduced supra), writ petitioner having moved this Court, having obtained an order and having acted on the order cannot now be heard to raise the point of limitation again. Therefore, I have no hesitation in coming to the conclusion that with regard to limitation, the aforementioned earlier order made by Hon'ble Single Judge (which has been given legal quietus and has attained finality) will govern this case.
7. This takes us to the next point which turns on paragraph 9 of the aforementioned earlier order wherein Hon'ble single Judge has, in the facts and circumstances of the case on hand had decided at Ladyship's discretion to give a personal hearing. It is because of such view that 07.12.2021, 10.30.a.m had been fixed as date and time for personal hearing. The venue is office of the sole respondent.
8. Before I proceed further, in State Bank of India officers case law (vide order dated 01.08.2019 in W.P.No.22634 of 2019) explaining the expression 'reasonable opportunity to show cause' occurring in proviso to Section 27 (2) of TNVAT Act, I had held that this expression https://www.mhc.tn.gov.in/judis/ 11/20 W.P.Nos.17528 & 17529 of 2021 will not include personal hearing. The reason is, the same Statute i.e., TNVAT Act uses the term 'reasonable opportunity of being heard' in other provision i.e., proviso to Section 23(4). It is not necessary to dilate much on this owing to the nature of the case on hand. It will suffice to say that this order made by me was assailed by way of a writ appeal and the same was dismissed by a Hon'ble Division Bench vide order dated 16.12.2019 made in W.A.No.4073 of 2019.
9. Therefore, personal hearing for passing orders under Section 27 of TNVAT Act qua escaped turnover or wrong availment of 'Input Tax Credit' ('ITC' for the sake of brevity) is not statutorily imperative. However, in this case, Hon'ble Judge has chosen to grant personal hearing and therefore, it is necessary to comply with the order.
10. With the above observation, I now revert to the case on hand.
11. With regard to the case on hand, learned counsel for writ petitioner submits that on 07.12.2020, the writ petitioner's representative went over to the office of the respondent, but they were asked to go away owing to Corona virus pandemic. Learned counsel submits that objections have been sent by way of registered post with acknowledgement due, the same have been duly received by the https://www.mhc.tn.gov.in/judis/ 12/20 W.P.Nos.17528 & 17529 of 2021 respondent on 10.03.2021 at 04.28 p.m, but the impugned orders have been made on 12.03.2021 without considering the objections. Postal track consignment download (hard copy) placed before this Court reads as follows:
https://www.mhc.tn.gov.in/judis/ 13/20 W.P.Nos.17528 & 17529 of 2021
12. Ms.Amirta Dinakaran, learned Revenue counsel accepts notice on behalf of sole respondent. Learned counsel adverting to the impugned order submits that sufficient opportunity has been given to the writ petitioner and in support of her contention, learned counsel draws the attention of this Court to the tabulation which talks about nature of opportunity given. It appears that opportunity has in fact been given to the writ petitioner, but there are lacunae, which this Court is able to see. They are, the impugned order does not say what transpired on 07.12.2020 and does not even mention the term 'personal hearing'. The other lacuna is, objections, though received on 10.03.2021, have not been considered in the impugned order dated 12.03.2021.
13. Therefore, without expressing any opinion on the contradictory versions qua what transpired on 07.12.2021, the following orders is passed:
(a) Impugned orders being orders dated 12.03.2021 bearing reference TIN 33160680798/2011-12 and TIN 33160680798/2012-13 are set aside solely on the ground that there is no mention about personal hearing on https://www.mhc.tn.gov.in/judis/ 14/20 W.P.Nos.17528 & 17529 of 2021 07.12.2020 in spite of a specific directive from this Court and the objections of the writ petitioner received on 10.03.2021 have not been considered;
(b) As a sequitur to the previous limb, though obvious it is made clear that this Court has not expressed any opinion or view on the merits of the matter;
(c) As Hon'ble predecessor judge has chosen to give a personal hearing, as a matter of judicial discipline, personal hearing by consent now stands fixed on 05.10.2021 at half past eleven (11.30 am) in the forenoon and the venue will be office of the respondent.
(d) It is open to the writ petitioner to reiterate the objections sent and received by the respondent on 10.03.2021
(e) Post above personal hearing on 05.10.2021, the respondent shall do the exercise de novo and pass orders within three weeks therefrom i.e., on or before 26.10.2021.
https://www.mhc.tn.gov.in/judis/ 15/20 W.P.Nos.17528 & 17529 of 2021 Captioned writ petitions are disposed of with the aforementioned directives. Consequently connected miscellaneous petitions are disposed of as closed. There shall be no order as to costs.
28.09.2021 Index: Yes/ No Internet : Yes/No Speaking/Non-speaking Order GPA/NST To The Commercial Tax Officer, Thiruvallikeni Assesment Circle Chennai - 600 035.
https://www.mhc.tn.gov.in/judis/ 16/20 W.P.Nos.17528 & 17529 of 2021 M.SUNDAR,J.
gpa/nst W.P.Nos.17528 & 17529 of 2021 & WMP.Nos.18629 & 18631 of 2021 28.09.2021 https://www.mhc.tn.gov.in/judis/ 17/20 W.P.Nos.17528 & 17529 of 2021 W.P.Nos.17528 & 17529 of 2021 and W.M.P.Nos.18629 & 18631 of 2021 M.SUNDAR, J., Captioned matter is listed under the cause list caption 'FOR BEING MENTIONED'.
2. This Court is informed that some delay had occurred in communication of the order i.e., 'order dated 28.09.2021 made in W.P.Nos.17528 & 17529 of 2021 and W.M.P.Nos.18629 & 18631 of 2021' [hereinafter 'said order' for the sake of convenience and clarity] and therefore, personal hearing could not be held on 05.10.2021 as per paragraph No.13(c).
3. Now, personal hearing is re-fixed (by consent) on 27.10.2021 Wednesday at half past eleven (11.30 a.m.) and the venue will be office of the respondent. Therefore, sub-paragraph (e) of paragraph 13 will also undergo a consequential change, as the change in personal hearing date vide sub-paragraph (c) will have cascading effect on sub-paragraph (e). Respondent shall do the exercise de novo and pass orders within three https://www.mhc.tn.gov.in/judis/ 18/20 W.P.Nos.17528 & 17529 of 2021 weeks from 27.10.2021 i.e., on or before 17.11.2021. For the purpose of abundant clarity and specificity, it is made clear that sub-paragraphs (c) and (e) of paragraph 13 of said order will now read as follows:
(c) As Hon'ble predecessor judge has chosen to give a personal hearing, as a matter of judicial discipline, personal hearing by consent now stands fixed on 27.10.2021 at half past eleven (11.30 am) in the forenoon and the venue will be office of the respondent;
(e) Post above personal hearing on 27.10.2021, the respondent shall do the exercise de novo and pass orders within three weeks therefrom i.e., on or before 17.11.2021;
{The changes alone are in different/bold font for ease of reference}
4. The above two sub-paragraphs will substitute the existing sub- paragraphs in said order. In all other aspects, said order will remain the same.
5. Registry to issue this order copy by 21.10.2021.
08.10.2021 mk https://www.mhc.tn.gov.in/judis/ 19/20 W.P.Nos.17528 & 17529 of 2021 M.SUNDAR, J mk W.P.Nos.17528 & 17529 of 2021 and W.M.P.Nos.18629 & 18631 of 2021 08.10.2021 https://www.mhc.tn.gov.in/judis/ 20/20