Madras High Court
M/S.Fantastic Mobiles vs The Commercial Tax Officer on 13 July, 2018
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.07.2018 CORAM : The Hon'ble MR.JUSTICE T.S.SIVAGNANAM W.P. No.17769 of 2018 and W.M.P.Nos.21035 and 21036 of 2018 M/s.Fantastic Mobiles, Rep. by its Partner, A.C.H.Nacheerdeen. .. Petitioner -vs- The Commercial Tax Officer, Pollachi (West) Assessment Circle, Pollachi, Coimbatore District. .. Respondent Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorarified Mandamus to call for the records on the file of the respondent in his proceedings in TIN 33142242509/2014-15 dated 14.06.2016 and quash the same as illegal and direct the respondent to consider the Form WW Audit Report filed by the petitioner for the year 2014-15 and to pass fresh orders in accordance with law. For Petitioner : Mr.S.Ramanathan For Respondent : Mr.V.Haribabu Addl.G.P. * * * * * O R D E R
Heard Mr.S.Ramanathan, learned counsel appearing for the petitioner and Mr.V.Haribabu, learned counsel appearing for the respondent. With consent, the writ petition itself is taken up for disposal.
2.The petitioner is aggrieved by the order of assessment dated 14.06.2016 passed under the provisions of the Tamil Nadu Value Added Tax Act, 2006, (hereinafter referred to as 'the TNVAT Act') for the Assessment Year 2014-15. Admittedly, the petitioner did not file Form WW, which is mandatory as per the provisions of the TNVAT Act. However, after the assessment order was passed, the petitioner made a request to the respondent to permit the petitioner to file Form WW and also paid the requisite penalty of Rs.10,000/- for belated submission of Form WW. However, the respondent did not reopen the assessment and did not consider the Form WW. Therefore, the petitioner approached the Deputy Commissioner (CT), Pollachi, by his representation dated 09.01.2018 requesting for appropriate direction to the Assessing Officer to consider the Form WW.
3.The petitioner placed reliance on the order passed in W.P.No.15598 of 2017 dated 21.06.2017 (M/s.Pollachi Mobiles vs. CTO, Pollachi (West)). The Deputy Commissioner, by communication dated 09.05.2018, informed the petitioner that the said decision will apply only to the said dealer, Pollachi Mobiles and the petitioner cannot rely upon the same.
4.The manner in which the representation given by the petitioner has been disposed of by the Deputy Commissioner, Pollachi, is incorrect. What is required to be seen is the ratio which has been laid down in the decision. The order passed in the case of M/s.Pollachi Mobiles was pursuant to the decision of the Hon'ble Division Bench in W.A.No.1149 of 2015 (between Nithra Furniture P. Ltd. vs. The Asst. Commissioner (CT), Chennai) dated 11.08.2015. Therefore, the decision binds the respondent. The operative portion of the judgment of the Hon'ble Division Bench is as follows:
7.If we have a look at the scheme of the Act, it will be clear that what the appellant is obliged to do under the Act, is to file monthly returns and not really the auditor's report. In any case, after the best of judgment assessment orders are passed, the appellant has filed Form WW. The correctness of the particulars reflected in Form WW are not in question. In such circumstances, the rejection of the request for passing revised assessment orders is not in accordance with law. This aspect has not been properly appreciated in the writ petitions.
8.Once the original defect, if at all it was a defect, was cured by the assessee, by filing Form WW, the respondent cannto simply throw the form out on the ground that it was filed beyond the period of limitation. This is especially so when best of judgment assessment orders have been passed by him.
9.In view of the above, the writ appeals are allowed and the common order of the learned Judge is set aside. The Order dated 18.5.2015 passed by the respondent is set aside. The matter is remitted back to the respondent for taking on file Form WW filed by the appellant in respect of both the assessment years. The appellant has already paid the penalty. Therefore, the respondent shall accept Form WW and pass orders afresh. No costs. Consequently, the above MPs are closed.
5.Considering the above decision and the facts of the present case, the assessment for the relevant year has to be redone.
6.In the result, the writ petition is allowed, the impugned order dated 14.06.2016 is set aside, with a direction to the respondent to accept Form WW filed by the petitioner, afford an opportunity of personal hearing and re-do the assessment in accordance with law. No costs. Consequently, W.M.P.Nos.21035 and 21036 of 2018 are closed.
13.07.2018 Index : Yes/No Website : Yes/No sra To The Commercial Tax Officer, Pollachi (West) Assessment Circle, Pollachi, Coimbatore District.
T.S.Sivagnanam, J.
(sra) W.P.No.17769 of 2018 13.07.2018