Madras High Court
Arsk Hardwares & Traders vs The State Tax Officer on 23 April, 2021
W.P(MD)Nos.5150, 5162 and 5164 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.04.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)Nos.5150, 5162 and 5164 of 2021
and
WMP(MD)Nos.4131, 4134, 4135, 4139 and 4140 of 2021
ARSK Hardwares & Traders
Represented by its Proprietor,
Mr.S.Reyazudeen
No.1/511-A, Poriyalar Nagar,
7th Street, Thirupallai,
Madurai – 625 014 ... Petitioner in all W.Ps.
Vs.
1.The State Tax Officer,
Legal and Revision (Intelligence),
Office of the Joint Commissioner (ST)(Intelligence),
Legal and Revision Wing,
Dr.Thangaraj Salai,
C.T.Complex, K.K.Nagar,
Madurai – 625 020.
2.The State Tax Officer (ST)(Int.),
Office of the Deputy Commissioner (ST)(Int.),
Collection and Arrear,
Demand and Arrear
Demand and Collection Cell,
Dr.Thangaraj Salai,
C.T.Complex, K.K.Nagar,
Madurai – 625 020. ... Respondents in all W.P.s
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
COMMON PRAYER: Petitions filed under Article 226 of the
Constitution of India, to call for the records on the file of the first
respondent herein, quash the impugned order of assessment
passed by the first respondent in GSTIN:
33ANPR8730L129/2017-18, GSTIN: 33ANPR8730L129/2018-19
and GSTIN: 33ANPR8730L129/2019-20 respectively dated
07.02.2020, as ex-facie illegal, violation of principle of natural
justice and contrary to the provisions of the Tamil Nadu Goods and
Service Tax Act, 2017.
For Petitioners : Mr.B.Sivaraman
in all WPs.
For Respondents : Ms.J.Padmavathi Devi
in all WPs. Spl.Govt.Pleader
COMMON ORDER
These Writ Petitions have been filed praying for issuance of
Writ of Certiorari, to call for the records on the file of the first
respondent herein, quash the impugned order of assessment
passed by the first respondent in GSTIN:
33ANPR8730L129/2017-18, GSTIN: 33ANPR8730L129/2018-19
and GSTIN: 33ANPR8730L129/2019-20 respectively dated
07.02.2020, as ex-facie illegal, violation of principle of natural
justice and contrary to the provisions of the Tamil Nadu Goods and
Service Tax Act, 2017.
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
2. The brief facts of the case are as follows:-
(i) The petitioner is the proprietor of ARSK Hardwares &
Traders, Madurai. On 30.10.2019 and 01.11.2019, the petitioner's
place of business was inspected by the 1st respondent and certain
defects were noticed for the Tax period 2017-18, 2018-19 and
2019-20 and therefore, on 04.11.2019, the 1st respondent called for
the GSTR 3B & GSTR-1 returns, statement of P&L Accounts,
Balance Sheet, Purchase Invoices, Sale Bills, Stock Account
Register, Copies of E-Way Bill Transactions, Import Export details,
Bank Statements and Annual Return GSTR-9. On 21.11.2019, the
first respondent issued notice pointing out discrepancies between
GSTR-3D and GSTR-2A and some suppressions; rate of tax
collected 18% instead of 28% and on verification P&L Account
regarding freight charges, no supporting evidences were furnished
by the petitioners to prove that the taxes have already been paid
under Reverse Charge under Section 9(3) of TNGST Act and 5(3)
IGST Act etc., and the petitioners was directed to furnish objections
within 15 days to the above proposals.
(ii) Further, on 12.12.2019, the 1st respondent issued pre-
assessment notice, proposing 10 defects, by reiterating the earlier
notice, proposed levy of penalty under Sections 74 and 125 and the
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
petitioner was directed to furnish objections within 7 days to the
above proposals. On 02.01.2020, the 1st respondent issued
personal hearing notice and fixed for personal hearing on
06.01.2020 at 11.30 a.m. On 06.01.2020, the petitioner filed letter
stating that documents pertaining to the said tax periods are
voluminous and sought 30 days time to file reply / objections with
documents etc. Further, on 20.01.2020, the petitioner filed
detailed objections to the pre-assessment notice, dated 12.12.2019
and given detailed objections to each and every defects pointed out
by the first respondent and requested personal hearing before
passing any orders.
(iii) On 21.01.2020, the 1st respondent issued Notice,
enclosing the details of proposed ITC as per GSTR-2a & E-Way Bill
inward verification details for the said Tax Period and called for
reply / objections to be filed on or before 23.01.2020. On
30.01.2020, the 1st respondent issued notice stating that there was
difference between P&L Account filed before the 1st respondent and
also proposed penalty equivalent to tax evaded, as per Section
122(XV) of the TNGST Act. On 07.02.2020, without considering the
objections filed by the petitioner and without offering opportunity
of personal hearing of being heard as contemplated under Sections
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
75(4) and 126 of the TNGST Act, the first respondent concluded the
impugned ex-parte assessment, for the tax period 2017-18, 2018-19
and 2019-20.
3. Mr.B.Sivaraman, the learned counsel appearing for the
petitioner would submit that the impugned ex-part assessment
orders of the 1st respondent are ex-facie illegal and in violation of
principles of natural justice, as contemplated under Section 75(4)
and 126(3) of the TNGST Act. The learned counsel, inviting the
attention of this Court in the Judgment of a Division Bench of this
Court in SRC Project Private Limited Vs. Commissioner of
Commercial Taxes, Chennai and Another reported in (2010 33
VST 333), wherein this Court held that the Assessing Authority
ought to have given an opportunity of personal hearing to the
Assessee, when sought for. Further, the learned counsel, in support
of his contention, relied on the Judgment of this Court in Shri
Mariamma Fire Works Vs. Commissioner of Commercial
Taxes and Another reported in (2011 (38) VST 345) wherein
this Court held that the Department should provide an opportunity
of personal hearing, before passing a final order of assessment.
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
4. It it his further submission that the order of assessment
was passed on 07.02.2020, but notice for personal hearing was
issued on 31.12.2020, which apparently shows non-application of
mind on the part of the 1st respondent. Further, the Deputy
Commissioner (ST)(Int), Madurai, has filed appeals under Section
107 of TNGST Act, before the Appellate Deputy Commissioner
(Appeal), Goods and Service Tax, Madurai, against the above said
assessment orders passed by the 1st respondent, dated 07.02.2020
pointing out certain defects. Therefore, the learned counsel prays
for allowing of the Writ Petitions by setting aside the impugned
order of assessments.
5. Ms.J.Padmavathi Devi, the learned Special Government
Pleader appearing for the respondents filed counter and would
submit that the petitioner has not filed the monthly returns in
compliance of the Tamilnadu Goods and Service Tax Act, 2007,
though the petitioner has done their business continuously and
therefore, the petitioner's place of business was inspected and
defects notice issued for the Tax period 2017-18, 2018-19 and
2019-20. Further, the learned Special Government Pleader
refused the contention of the petitioner that the order of
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
assessment was passed without affording the petitioner a
reasonable opportunity of being heard. If the petitioner have any
grievance, appellate remedy available to the petitioner to redress
the grievance and therefore, she prayed for dismissal of the Writ
Petitions.
6. I have heard the learned counsels appearing on either side
and perused the materials available on record.
7. On perusal of the impugned order would show that the
impugned order of assessment has been passed on 07.02.2020,
whereas personal hearing has been on 03.12.2020, after much
latter the impugned order of assessment made, which clearly shows
non-application of mind on the part of the 1st respondent. Even the
Deputy Commissioner (ST)(Int), Madurai, has filed an appeal under
Section 107 of TNGST Act, before the Appellate Deputy
Commissioner (Appeal), Goods and Service Tax, Madurai, as
against the above said assessment orders passed by the 1st
respondent, dated 07.02.2020, pointing out certain deficiency. In
such view of the matter, no doubt in my mind that there is total
non-application of mind on the part of the 1st respondent in passing
the impugned order of assessment, dated 07.02.2020. In the
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
considered opinion of this Court, the petitioner is entitled to be
heard in person, before the order of assessment was made.
8. In view of the forgoing reasons, this Writ Petition is
allowed and the impugned order of assessment passed by the 1 st
respondent in GSTIN: 33ANPR8730L129/2017-18, GSTIN:
33ANPR8730L129/2018-19 and GSTIN: 33ANPR8730L129/2019-20
respectively dated 07.02.2020, are set aside and the matters are
remanded back to the 1st respondent to pass fresh orders, after
affording an opportunity of personal hearing to the petitioner.
Such an exercise shall be completed within a period of four weeks
from the date of receipt of a copy of this order. No Costs.
Consequently, the connected Miscellaneous Petitions are closed.
23.04.2021
Index:Yes/No
Internet:Yes/No
MPK
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
Note:(i) 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
1.The State Tax Officer,
Legal and Revision (Intelligence),
Office of the Joint Commissioner (ST)(Intelligence),
Legal and Revision Wing,
Dr.Thangaraj Salai,
C.T.Complex, K.K.Nagar,
Madurai – 625 020.
2.The State Tax Officer (ST)(Int.),
Office of the Deputy Commissioner (ST)(Int.),
Collection and Arrear,
Demand and Arrear
Demand and Collection Cell,
Dr.Thangaraj Salai,
C.T.Complex, K.K.Nagar,
Madurai – 625 020.
https://www.mhc.tn.gov.in/judis/
W.P(MD)Nos.5150, 5162 and 5164 of 2021
J.NISHA BANU, J.
MPK
W.P(MD)Nos.5150, 5162 and 5164 of 2021
23.04.2021
https://www.mhc.tn.gov.in/judis/
