M/S.Sri Ramanuja Hotels Pvt vs The Government Of Tamil Nadu
2021 Latest Caselaw 9001 Mad

                                                                                   WA.No.1001 of 2021


                                        IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 01.4.2021

                                                            CORAM

                                        THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM

                                                              and

                                          THE HONOURABLE MS.JUSTICE R.N.MANJULA

                                      Writ Appeal No.1001 of 2021 & CMP.No.6272 of 2021


                      M/s.Sri Ramanuja Hotels Pvt.
                      Ltd., rep.by its Managing
                      Director                                                       ...Appellant
                                                               Vs

                      1.The Government of Tamil Nadu,
                        rep.by its Additional Chief
                        Secretary (FAC), Commercial Tax
                        Department, Fort.St.George,
                        Chennai-9.

                      2.The Commercial Tax Officer,
                        Pollachi (West) Circle, Pollachi.                            ...Respondents

APPEAL under Clause 15 of the Letters Patent against the order

dated 06.10.2020 in W.P.No.28472 of 2016.

                                         For Appellant:             Mrs.Hema Muralikrishnan
                                         For Respondents:           Mrs.G.Dhanamadhri, AGP





https://www.mhc.tn.gov.in/judis/
 https://www.mhc.tn.gov.in/judis/
                                                                                   WA.No.1001 of 2021

Judgment was delivered by T.S.SIVAGNANAM,J

We have heard Mrs.Hema Muralikrishnan, learned counsel

appearing for the appellant and Mrs.G.Dhanamadhri, learned

Additional Government Pleader accepting notice for the respondents.

2. This writ appeal, filed by the writ petitioner, is directed against

the order dated 06.10.2020 in W.P.No.28472 of 2016.

3. In the said writ petition, the appellant challenged the order

dated 27.6.2016 passed by the Government rejecting the application

dated 25.3.2016 submitted for waiver under Section 31 of the Tamil

Nadu Value Added Tax Act, 2006 (for short, the Act) read with Rule

16(4) of the Tamil Nadu Value Added Tax Rules, 2007 (for brevity, the

Rules).

4. According to the appellant, they did not collect tax from trade

customers on account of the fact that they had filed a writ petition

before this Court challenging the vires of the amendment to the

Second Schedule of the Act by filing W.P.No.18992 of 2014 and when it

was entertained, an order of interim stay of the amendment to the

Second Schedule was granted on 18.7.2014 and consequently, no tax

was collected. However, W.P.No.18992 of 2014 along with connected

writ petitions [W.P.No.22072 of 2013 etc. cases] (Hotel & Bar

(FL.3) Association of Tamil Nadu (HOBAT) rep,by its President

https://www.mhc.tn.gov.in/judis/ https://www.mhc.tn.gov.in/judis/ WA.No.1001 of 2021

Vs. Secretary to Government) were dismissed by the Hon'ble First

Bench of this Court by a common order dated 31.3.2015 and the

validity of the amendment was upheld. The said common order was

affirmed by the Hon'ble Supreme Court. Pursuant to that, the

Assessing Officer issued the notice dated 22.1.2016 directing the

appellant to pay the total tax of Rs.19,42,655/- for the assessment

years 2014-15 and 2015-16 (upto December 2015).

5. On receipt of the demand, the appellant approached the

Government and submitted a representation dated 25.3.2016 seeking

remission of the the sales tax demanded by the Assessing Officer. In

the said representation, the appellant stated that in view of the interim

order granted earlier on 18.7.2014, the appellant did not collect tax

from customers on the sale of alcoholic liquors and that with effect

from 01.10.2015, after the decision of the High Court, the appellant

had been collecting and paying tax on the sale of alcoholic liquors

effected by it. The appellant also referred to G.O.Ms.No.973 dated

27.5.1967 for grant of waiver. However, the Government rejected the

said representation by the order dated 27.6.2016 solely on the ground

that the validity of the amendment to the Schedule had been upheld

by the High Court. This was put to challenge in the present writ

petition, which was dismissed by the impugned order.

https://www.mhc.tn.gov.in/judis/ https://www.mhc.tn.gov.in/judis/ WA.No.1001 of 2021

6. The first issue, which we have to take note of is as to whether

the order dated 27.6.2016 was passed after due consideration of the

provisions of Section 31 of the Act read with Rule 16(4) of the Rules .

It is an admitted fact that the validity of the amendment has been

upheld. The appellant, in unequivocal terms, accepted the position and

mentioned the same in the said representation for remission. The case

of the appellant is that in the light of the order of interim stay granted

in the earlier writ petition, they did not collect tax. Therefore, the

Government is required to consider as to whether such a plea is

justifiable and as to whether the appellant can seek for remission of

such amount.

7. To be noted, it is the appellant, who challenged the validity of

the said amendment by approaching this Court and obtained an order

of interim stay. Therefore, the issue would be as to whether the

appellant can plead circumstances beyond control for having not

collected the tax. In any event, we do not want to express any opinion

on this issue and it is best left to the Government to take a decision.

Since the decision taken is not on the above lines, we are inclined to

interfere with the order dated 27.6.2016, which is impugned in the

present writ petition.

https://www.mhc.tn.gov.in/judis/ https://www.mhc.tn.gov.in/judis/ WA.No.1001 of 2021

8. Accordingly, the writ appeal is allowed, the order passed by

the Government dated 27.6.2016, which is impugned in W.P.No.28472

of 2016 is set aside and the matter is remanded to the Government to

take a fresh decision after taking note of the observations contained in

this judgment. A decision shall be taken by the Government within a

reasonable time preferably within a period of three months from the

date of receipt of a copy of this judgment. In order to facilitate the

Government to pass orders, the appellant is directed to submit a fresh

representation along with a copy of the earlier representation and

other documents, which they seek to rely upon and a copy of this

judgment for the Appropriate Authority to take a proper decision in

accordance with law. No costs. Consequently, the connected CMP is

closed.

01.4.2021 To

1.The Additional Chief Secretary (FAC), Government of Tamil Nadu, Commercial Tax Department, Fort.St.George, Chennai-9.

2.The Commercial Tax Officer, Pollachi (West) Circle, Pollachi.

RS

https://www.mhc.tn.gov.in/judis/ https://www.mhc.tn.gov.in/judis/ WA.No.1001 of 2021

T.S.SIVAGNANAM,J AND R.N.MANJULA,J

RS

WA.No.1001 of 2021& CMP.No.6272 of 2021

01.4.2021

https://www.mhc.tn.gov.in/judis/ https://www.mhc.tn.gov.in/judis/