Madras High Court
M/S. Flextronics Technologies India ... vs The Assistant Commissioner (Ct) on 13 June, 2014
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-06-2014 CORAM: THE HONOURABLE MR.JUSTICE B. RAJENDRAN Writ Petition No. 15373 of 2014 and M.P. No. 1 of 2014 M/s. Flextronics Technologies India Pvt Ltd Plot No.3, Phase-II SIPCOT Industrial Park Santhavelur C. Village Sriperumbudur Kancheepuram District 602 106 .. Petitioner Versus The Assistant Commissioner (CT) Sriperumbudur Assessment Circle Varadharajapuram .. Respondent Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari to call for the records of the respondent in RC 2230/2013/A3 and quash the proceedings dated 05.06.2014 issued therein. For Petitioner : Ms. Hema Murali Krishnan For Respondent : Mr. Kanmani Annamalai Additional Government Pleader (Tax) ORDER
The petitioner has filed this writ petition challenging the notice dated 05.06.2014 issued by the respondent herein, wherein, the petitioner was called upon to pay the penalty amount of Rs.4,72,43,733/- within 3 days from the receipt of the notice failing which further proceedings will be taken under the provisions of TNVAT Act, 2006.
2. According to the counsel for the petitioner, the respondent has issued a notice dated 30.06.2011 proposing to revise the assessment order passed for the assessment year 2010-2011 on the ground that the petitioner has not included the ADD payable under Section 30 of Special Economic Zone Act, 2005 in the sale value of goods. Inspite of objections filed by the petitioner, by an order dated 21.10.2011, the respondent confirmed the proposals and revised the assessment order passed for the year 2010-2011. As against the said order dated 21.10.2011, the petitioner has filed an appeal before the Appellate Deputy Commissioner (CT) V, Kancheepuram. After hearing both sides, the appellate authority dismissed the appeal on 12.04.2013. Even before the petitioner could file a further appeal before the Tamil Nadu Sales Tax Appellate Tribunal, Chennai, the respondent, by a notice dated 20.06.2013, called upon the petitioner to pay the entire tax amount and penalty within three days. As against the same, the petitoner approached this Court and filed WP No. 17997 of 2013 and by order dated 02.07.2013, this Court directed the petitioner to pay the entire tax amount and the recovery notice alone was ordered to be kept in abeyance till 12.08.2013 to enable the petitioner to obtain interim orders from the second appellate authority. The petitioner therefore paid the entire tax amount and filed T.A. No. 25 of 2013 along with a petition for interim stay in T.P. No. 9 of 2013 before the second appellate authority/Tribunal. The Tribunal, by order dated 19.08.2013 directed the petitioner to remit 25% of the disputed penalty. The petitioner filed a petition for modification and considering the same, the Tribunal, by order dated 19.08.2013 directed the petitioner to file sufficient security for the entire disputed penalty. Ultimately, by an order dated 24.03.2014, the Tribunal dismissed the second appeal.
3. According to the learned counsel for the petitioner, as against the dismissal of the second appeal on 24.03.2014, the petitioner has a remedy of revision before this Court and such revision can be filed by the petitioner within 90 days from the date of receipt of a copy of the order dated 24.03.2014. It is further stated that the copy of the order dated 24.03.2014 was delivered to the petitioner only on 30.05.2014. The petitioner can therefore prefer a revision petition within 90 days from 30.05.2014. However, even before the expiry of the time stipulated for preferring the revision, the respondent has issued the impugned notice calling upon the petitioner to pay the penalty amount within three days. If the impugned notice is given effect to, the right of the petitoiner to prefer revision will be taken away and in such event, the petitioner will be highly prejudiced. According to the learned counsel for the petitioner, this Court in the decision rendered in the case of Lakshmi Machine Works Ltd., vs. Deputy Commisisoner reported in (2008) 17 VST 32 held that coercive steps shall not be taken for recovery of dues before the expiry of the appeal period and recourse taken by the assessing officer to recover arrears in such a hasty manner, even without giving adequate time to the petitioner to prefer an appeal, is arbitrary. Relying on the above decision, the learned counsel for the petitioner prayed this Court for allowing the writ petition.
4. The learned Additional Government Pleader for the respondent would contend that the petitioner's attempt to assail the assessment order was negatived by the first appellate authority as well as the second appellate authority and only thereafter, the impugned notice was issued to the petitioner. The respondent is therefore justified in issuing the impugned notice as a measure of adherence to principles of natural justice and prayed for dismissal of the writ petition.
5. I heard the counsel for the petitioner as well as the learned Additional Government Pleader. Admittedly, the second appeal filed by the petitioner was dismissed by the Tribunal on 24.03.2014 and a copy of the order was served on the petitioner on 30.05.2014. As against the order dated 24.03.2014, the petitioner has got a right of revision and such revision has to be filed within 90 days. However, even before the expiry of the statutory period prescribed for preferring a revision, the respondent has issued the impugned notice calling upon the petitioner to pay the penalty amount, which is sought to be assailed by the petitioner by filing a revision petition. In the decision oif this Court rendered in the case of Lakshmi Machine Works Ltd., vs. Deputy Commisisoner reported in (2008) 17 VST 32 it was held that coercive steps shall not be taken for recovery of dues before the expiry of the appeal period and recourse taken by the assessing officer to recover arrears in such a hasty manner, even without giving adequate time to the petitioner to prefer an appeal, is arbitrary. The said decision is squarely applicable to the facts of this case.
6. Accordingly, the impugned notice issued by the respondent is set aside and the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
13.06.2014 rsh To The Assistant Commissioner (CT) Sriperumbudur Assessment Circle Varadharajapuram B. RAJENDRAN, J rsh WP No. 15373 of 2014 13-06-2014