Madras High Court
M/S. Quality Tiles And Floorings vs The Assistant Commissioner (Ct) on 23 April, 2021
W.P.(MD)No.2172 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.04.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P.(MD)No.2172 of 2019 and
WMP(MD) No.1733 of 2019
M/s. Quality Tiles and Floorings,
Represented by its Partner M.Sachin Kumar,
S.No.39/2, Kaliappan 2nd Bit Village,
Karuppayurani,
Sivagangai Main Road, Madurai. Petitioner
Vs.
The Assistant Commissioner (CT),
Tallakulam Assessment Circle,
Madurai. Respondent
PRAYER: Writ petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the records
in TIN 33484884602/2015-16 dated 25.05.2018 passed by the
respondent and to quash the same as illegal, arbitrary and against the
principles of natural justice and direct the respondent to pass a
assessment order afresh by considering the representation dated
27.02.2018 judicially including the opportunity of being heard.
For Petitioner : Mr.S.Karunakar
For Respondent : Mrs.J.Padmavathi Devi
Special Government Pleader
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W.P.(MD)No.2172 of 2019
ORDER
This Writ Petition has been filed challenging the impugned
order of the second respondent in TIN 33484884602/2015-16 dated
25.05.2018.
2. The petitioner is a dealer in granite slabs and tiles and an
assessee registered with the respondent. According to the petitioner,
original deemed assessment order was passed by the respondent under
Section 22(2) of the TNVAT Act for the year 2015-2016. Subsequent to
that, notice was issued to the petitioner on 25.01.2018, proposing to
revise the assessment and to levy penalty under Section 27(3) & 27(4) of
the TNVAT Act, based on certain discrepancies found in the stock. On
receipt of notice, the petitioner had filed his reply dated 27.02.2018. The
grievance of the petitioner is that without giving the opportunity of
personal hearing, the respondent had passed the impugned order.
3.The learned counsel for the petitioner would submit that
computing stock by way of trading account is a crude method and will
never give any correct result as a fractional variation in adopting the
profit margin in the middle of the year and appraising the value of the
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W.P.(MD)No.2172 of 2019
stock held will upset the entire results. He would further submit that the
opportunity of personal hearing was not given by the respondent before
passing the impugned order. He would rely upon the judgment of the
Division Bench of this Court in an unreported decision in W.A(MD) No.
234 to 240 of 2015 (G.V.Cotton Mills (P) Ltd, rep by its Managing
Director Vs. The Assistant Commissioner (CT), Avarampalayam
Assessment Circle, Corporation of Shopping Complex, Coimbatore, dated
16.03.2018 in order to substantiate his contention.
4.The learned Special Government Pleader appearing for the
respondent would submit the petitioner has an alternative remedy to file
statutory appeal as per TNVAT Act 2006. She would further submit that
the actual suppression was arrived based on detailed verification of
books of accounts and physical stock available at the place of business
by the Enforcement Wing Officers and the same was accepted by the
dealer. The dealer has not explained the difference at the time of
inspection. The stock difference in terms of trading account method has
been upheld by TNGST in TCR No.538/01 dated 18.03.2002 and also
upheld by the STAT (AB), Madurai in MTSA 374/2000 dated
30.10.2007, which is also confirmed by this Court in W.P(MD) No.
10200/2005, dated 10.07.2007. Hence, this Writ Petition is not
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W.P.(MD)No.2172 of 2019
maintainable.
5.Heard the learned counsel for the petitioner and the learned
Special Government Pleader for the respondent.
6. The respondent objects to the maintainability of the Writ
Petition on the ground that the Act provides for an effective alternate
remedy and they seek for a direction upon the petitioner to avail of the
alternate remedy and dismiss the Writ Petition as not maintainable. The
settled legal position is that mere existence of alternate remedy would not
automatically oust the jurisdiction of this Court under Article 226 of the
Constitution of India. The case has to be tested on facts, which are
available before the Court and decide the issue. Therefore, this Court is
of the view that this Writ Petition is maintainable.
7.It is the main contention of the petitioner that without
affording an opportunity of personal hearing, the respondent has passed
the impugned order, in gross violation of principles of natural justice.
But, in the counter affidavit, there is no whisper as to the same. It is
mandatory on the part of the respondent to give an opportunity of
personal hearing, by specifying the dates of such personal hearing,
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W.P.(MD)No.2172 of 2019
whether it is asked or not by the petitioner.
8.In this context, a Division Bench of this Court in an
unreported decision in W.A(MD) No.234 to 240 of 2015 (G.V.Cotton
Mills (P) Ltd, rep by its Managing Director Vs. The Assistant
Commissioner (CT), Avarampalayam Assessment Circle, Corporation
of Shopping Complex, Coimbatore, dated 16.03.2018, has held that
failure to submit objection to the pre-assessment notice would not give a
right to the Assessing Officer to deny the opportunity of personal hearing
and the relevant portion reads thus:-
“DENIAL OF PERSONAL HEARING
10.The respondent denied the appellant opportunity of
hearing only on the ground that objection was not
given to the pre-assessment notices. Even if objection
was not given, still the assessing authority was
expected to post the matter for hearing by issuing
notice to the assessee. In case, the assessee fail to
appear, it is open to the assessment authority to pass
orders on merits. We make the position clear that the
failure to submit objection to the pre-assessment
notice would not give a right to the Assessment
Officer to deny opportunity of personal hearing to the
assessee.”
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W.P.(MD)No.2172 of 2019
9.As far as the method of computing the stock by way of
trading account is concerned, it is reiterated by the learned Special
Government Pleader that the stock difference in terms of trading account
method has been upheld by way of various rulings and the same was
confirmed by this Court. On perusal of the impugned order, it is stated
that since the objections filed by the dealer were not acceptable and in
the absence of stock book, the respondent is left with no other option to
gauge the difference by way of trading method. This Court is of the
considered opinion that if an opportunity of personal hearing is granted,
the petitioner could demonstrate as to why there is a difference in stock.
10. Therefore, on the sole ground of not affording personal
hearing, this Court is of the view that the matter should be remanded for
fresh consideration. Accordingly, the impugned order in TIN
33484884602/2015-16 dated 25.05.2018 is set aside and the matter is
remanded back to the respondent for fresh consideration. The petitioner
is hereby directed to make his reply cum objection, if any, within a
period of two weeks from the date of receipt of a copy of this order.
Thereafter, the respondent shall fix a specific date for hearing and
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W.P.(MD)No.2172 of 2019
communicate the same to the petitioner, in advance. On the said date, the
petitioner shall appear before the respondent with all relevant records
regarding stock and put forth his contentions and after hearing the
petitioner, the respondent, by considering the reply and objections, shall
pass appropriate reasoned order, within a further period of four weeks
thereafter. Needless to say that if the petitioner does not co-operate in the
enquiry or does not avail personal hearing, the respondent shall record
the same and pass orders in accordance with law.
11.The Writ Petition is allowed, on the above terms. No costs.
Consequently, connected Miscellaneous Petition is closed.
23.04.2021
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vrn
Note:
In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
The Assistant Commissioner (CT),
Tallakulam Assessment Circle,
Madurai.
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W.P.(MD)No.2172 of 2019
J.NISHA BANU, J.
vrn
Order made in
W.P.(MD)No.2172 of 2019 and
WMP(MD) No.1733 of 2019
23.04.2021
(2/2)
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