Madras High Court
Spl Infra Structure Pvt. Limited vs The Commercial Tax Officer on 10 November, 2014
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2014 CORAM THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM W.P.Nos.3658 and 3659 of 2013 and M.P.Nos.1 and 1 of 2013 SPL Infra Structure Pvt. Limited, Represented by its Managing Director, Mr.SP.Lakshmanan, Room No.24, First Floor, Crescent Park Street, T.Nagar, Chennai 600 017. ... Petitioner in both W.Ps. Vs. The Commercial Tax Officer, Nandanam Assessment Circle, 46, Pasumponmuthuramalingam Salai, Chennai 28. ... Respondent in both W.Ps. Prayer in W.P.No.3658 of 2013: Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorari, to call for the records of the respondent in TIN33210761814/2006-07 dated 14.12.2012 and to quash the impugned proceedings dated 14.12.2012 and further direct the respondent to pass orders. Prayer in W.P.No.3659 of 2013: Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorari, to call for the records of the respondent in TIN33210761814/2007-08 dated 14.12.2012 and to quash the impugned proceedings dated 14.12.2012 and further direct the respondent to pass orders. For Petitioner in both W.Ps. : Mr.R.Kumar For Respondent in both W.Ps. : Mr.Kanmani Annamalai Additional Government Pleader COMMON ORDER
In both these Writ Petitions, the petitioner, who is a registered dealer under the provisions of the Tamil Nadu Value Added Tax Act, 2006, on the file of the respondent, challenges the orders of assessment for the Assessment Years 2006-07 and 2007-08.
2. The learned counsel appearing for the petitioner submitted that the impugned orders are in violation of principles of natural justice and the respondent failed to consider the objections filed by the petitioner and merely followed the proposal received from the Enforcement Wing and failed to exercise its quasi-judicial function. Further, it is submitted that in terms of Section 5 of the Act, the petitioner has paid tax on the deemed sale value of transfer of property in goods and the Act permits reporting of purchases in connection with transfer of property in goods. Further, the learned counsel submitted that the assessment order is against the principles laid down in the case of Madras Granite Pvt. Ltd. vs. Commercial Tax Officer, Arisipalayam, reported in 146 STC 642.
3. This writ petition came up for admission before this Court on 14.02.2013 and the learned Additional Government Pleader accepted notice on behalf of the respondent and sought for time to get instructions and hence, the matter was posted on 04.03.2013 and an order of interim stay was granted till then.
4. The learned counsel appearing for the petitioner further submitted that the petitioner appeared in person before the Assessing Officer and informed the Assessing Officer about the order of stay granted by this Court on 14.02.2013 itself. That apart, though the petitioner was ready and willing to file an appeal, since there was an error apparent on the face of the orders, the petitioner filed petitions under Section 84 of the Act to rectify the error. In the rectification application for the Assessment Year 2006-07, the petitioner pointed out the following errors in tax rate adopted:
(i) Sales suppression on the purchases not accounted proposed Rs.560410/- @ 4% in Page:4 of the assessment order was calculated @ 12.5% and the sales value proposed @ 4% @ 12.5% while arriving tax due by oversight.
(ii) Payment of Rs.298612/- paid for 2006-2007 by cheque No.942825 dated 12.08.2007 for the reasons stated in our letter dated 31.07.2007 (copy enclosed) not considered as tax paid for 2006-07.
(iii) Payment of Rs.408423/- paid towards sales of assets to the Enforcement Wing Officer Group VIII, Chennai (Central) in the course of Vat audit by cheque No.0114341 dated 29.09.2011 (Xerox copy of cheque enclosed) also not considered. For the Assessment Year 2007-08, in the petition under Section 84 of the Act, the petitioner pointed out the following errors:
It could be seen from the statement recorded from us. But you have taken the entire difference in purchase value of Rs.2,47,99,664/- and arrived the deemed sale value adding G.P at 10% on Rs.2,72,79,630/- and assessed at different rate as follows.
Rs.2,31,89,734/- @ 4% Rs.40,89,896/- @ 12.5% at page 4 it was proposed.
But, while issuing pre-revision notice, the turnover liable to tax @ 4% on Rs.2,34,01,247/-@ 12.5% on Rs.38,78,383/-.
We sent the records relating the difference in turnover produced before the VAT Audit Officer proving the transaction of Rs.1,96,80,938/- in Karnataka State and also the reconciliation statement filed at Page 4 of our reply filed. Hence, the turnover of Rs.2,72,79,630/- included for assessment requires deletion.
Further though we have explained the following transaction relating to the year 2008-2009, but it has been included and considered for the year 2007-2008.
1. Admixtures (Chemicals) Rs.2,35,254/-
2. Guide stone & Sign board Rs.1,15,820/-
3. Discount received from IOCL Rs.17,15,370/- With the above submissions, the petitioner requested the respondent to consider the above facts and rectify the errors and revise the assessment so as to enable the petitioner to file an appeal under Section 52 of the Act as the due date for filing the appeal is to expire on 16.01.2013.
5. According to the petitioner, the order of stay granted by this Court was intimated to the respondent. However, there is no written proof produced by the petitioner to establish the same. During the pendency of the writ petition, without reference to the order of stay granted by this Court, the respondent rejected the petitions filed under Section 84 of the Act, by order dated 18.02.2013. It is true that these orders dated 18.02.2013 are not impugned in this writ petition.
6. The respondent filed counter affidavit resisting the claim made by the petitioner elaborately referring the factual details. The learned Additional Government Pleader also reiterated the contentions raised in the counter affidavit and submitted that the orders of assessment have been properly made and if the petitioner is aggrieved the same, he should have filed an appeal before the Appellate Authority and he should not have straight away approached this Court by filing these writ petitions.
7. After hearing the submissions on either side and perusing the materials, it is seen that notice was accepted on behalf of the respondent on 14.02.2013 and the order of interim stay was granted by this Court on the said date and the case was posted for further hearing on 04.03.2013. In such circumstances, without going into the controversy as to whether the petitioner intimated the order of stay to the respondent, since these Writ Petitions have been entertained and notice has been issued to the learned Additional Government Pleader, this Court is of the view that the respondent is deemed to have knowledge about the order of stay granted by this Court. Therefore, the respondent ought to have waited for further direction from this Court and kept the matter pending. However, the respondent has passed the orders dated 18.02.2013 during the pendency of these writ petitions, when there is an order of interim stay granted by this Court staying further proceedings in pursuant to the impugned orders of assessment. Therefore, at this stage, this Court is of the view that the orders dated 18.02.2013 rejecting the petitions filed by the petitioner under Section 84 of the Act deserve to be set aside, since, according to the petitioner, the same was erroneously rejected that too during the pendency of the writ petition when the order of interim stay was in force.
8. Accordingly, the relief sought for in these writ petitions is modified and moulded to suit the requirement. The orders passed by the respondent in TIN 33210761814/06-07 and TIN 33210761814/07-08 dated 18.02.2013 are quashed and the matters are remanded to the respondent for fresh consideration and the respondent shall afford an opportunity of personal hearing to the petitioner and hear the petitioner and decide the petitions dated 07.01.2013 filed under Section 84 of the Act, on merits and in accordance with law, without being in any manner influenced by earlier orders dated 18.02.2013. No costs. Consequently, connected miscellaneous petitions are closed.
10.11.2014 ogy To The Commercial Tax Officer, Nandanam Assessment Circle, 46, Pasumponmuthuramalingam Salai, Chennai 28.
T.S. SIVAGNANAM, J.
ogy W.P.Nos.3658 and 3659 of 2013 10.11.2014