Madras High Court
Tvl.Orient Color Crafts vs The Assistant Commissioner (Ct) ? I ... on 16 August, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.08.2018
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)No.13708 of 2010
and
M.P.(MD).No.1 of 2010
Tvl.Orient Color Crafts,
rep. by partner :R.Jegadeesa Sankar,
No.152, Mundaga Nadar Street,
Sivakasi. .. Petitioner
Vs.
The Assistant Commissioner (CT) ? I (FAC),
Sivakasi. .. Respondent
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorari to call for the records
on the file of the respondent in TNGST:5960250/03-04, dated 30.09.2010 and
quash the same as illegal, arbitrary, violative of the principles of natural
justice and contrary to the clarifications issued by the Commissioner of
Commercial Taxes and against the settled principles of law.
!For Petitioner : Mr.A.Chandrasekaran
For Respondents : Mr.D.Muruganandham,
Additional Government Pleader
:ORDER
This writ petition has been filed by the petitioner challenging the order in TNGST : 5960250/03-04, dated 30.09.2010.
2. The brief facts of the case of the petitioner are as follows:
(a) The petitioner is a printer engaged in the business of execution of printing contracts. The works contract are being done by the petitioner with the aid of offset printing machines, cutting machines and scoring machines, etc. The petitioner has been carrying out two types of contract and in one type of contract, the petitioner is carrying out all the jobs ie., purchasing raw materials, printing works, etc. This type of works contract is liable for tax under Section 3-B of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as ?TNGST Act?). In another type of contract, the petitioner is carrying out only printing job based on the raw materials supplied by the customer. This type of contract is not liable for tax under TNGST Act.
(b) During the assessment year 2003-04, the petitioner had opted for payment of tax at compounding rate and reported a total and taxable turnover of Rs.2,17,36424/- and Rs.1,60,31,576/- respectively. The reported taxable turnover represents the works contract turnover and the petitioner paid the tax due on the said reported taxable turnover. The remaining turnover of Rs.57,04,848/- represents only coolie for printing, sale of reading books and envelops, which are all exempted from the levy of tax under the TNGST Act.
The respondent also accepted the books of accounts and the returns filed by the petitioner and passed the original order of assessment, vide his order in TNGST : 5960250/03-04, dated 05.12.2010.
(c) While so, on 17.11.2006 the respondent issued a notice proposing to revise the assessment for the year 2003-04 stating that since the petitioner opted for payment of tax at compounding rate, the printing coolie receipts of Rs.51,81,652/- also has to be subjected to tax. The petitioner has submitted his reply on 04.12.2006 stating that as per the clarification issued by the Commissioner of Commercial Taxes, in Lr.No.K.Dis.Acts Cell- I/36669/2002, dated 17.07.2002 and in Lr.No.K.Dis.Acts Cell-I/39426/2004, dated 10.08.2004, the printing coolie cannot be included in the total turnover. Nearly after four years, the petitioner has received another notice, dated 14.05.2010. But, in the said notice, the reply given by the petitioner has not been mentioned. Therefore, the petitioner has again submitted his objections on 24.06.2010. Without considering the reply given by the petitioner and without giving an opportunity of personal hearing, the respondent has passed the impugned order, dated 30.09.2010. Challenging the same, the petitioner is before this Court.
3. The main contention of the learned counsel appearing for the petitioner is that without considering the reply given by the petitioner and without providing an opportunity of personal hearing, the respondent has passed the impugned order, dated 30.09.2010. Hence, the impugned order is liable to be set aside.
4. The learned Additional Government Pleader appearing for the respondent would submit that in the impugned order, it is clearly stated that the objections given by the petitioner, dated 24.06.2010, have been considered and rejected as the decisions relied on by the petitioner are not relevant to the case on hand. Therefore, there is no merit in the contention of the petitioner. Thus, he prayed to dismiss this petition.
5. Heard the learned counsel appearing for both sides and perused the record carefully.
6. Admittedly, in this case, the petitioner has given his objection, dated 24.06.2010, quoting various judgments. The respondent has also accepted the receipt of the objections of the petitioner, dated 24.06.2010, in the impugned order. However, the respondent has rejected the same stating that the decisions relied on by the petitioner is not relevant to the case on hand. In the similar circumstances, a learned Single Judge of this Court in an unreported decision in W.P.No.3427 of 2005 (M/s.Lakshmi Saw Mill Vs. The Commercial Tax Officer, Tiruchirapalli), dated 27.04.2005, has held as follows:
?..... A perusal of the impugned order shows that the petitioner's objections were considered and overruled. Except the above, there is nothing to indicate whether in fact the said objections were considered or not. In the absence of any reasons for rejecting the objections in the impugned order, the effective statuary right of appeal would be defeated as the petitioner cannot have any ground to question the order before the appellate authority. The same issue came up for consideration before this Court in W.P.No.17201 of 2001 and by order dated 20.09.2001 for the very same reason the order of assessment impugned therein was set aside with a direction to the respondent to consider the objections of the dealer therein and pass fresh orders. Accordingly, in this writ petition also, the impugned order is set aside and the respondent is directed to consider the objections filed by the petitioner and pass fresh orders in accordance with law. It is made clear that if the respondent does not agree with the objections, he has to give reasons for the same. With the above direction, this writ petition is disposed of.?
7. The said decision is squarely applicable to this case, as in this case also, the respondent rejected the objections without considering the same.
8. In view of the above, the impugned order passed by the respondent, dated 30.09.2010, is set aside and the same is remitted back to the file of the respondent. The respondent is directed to consider the objections filed by the petitioner and after providing an opportunity of personal hearing, pass reasoned orders in accordance with law. The above exercise shall be completed by the respondent within a period of eight weeks from the date of receipt of a copy of this order.
9. This Writ Petition stands disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Assistant Commissioner (CT) ? I (FAC), Sivakasi.
.