Madras High Court
Tvl.Thalapathy Consruction vs The Commissioner Of Commercial ... on 8 April, 2021
W.P.(MD)No.15458 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P.(MD)No.15458 of 2020 and
WMP(MD) No.12976 of 2020
Tvl.Thalapathy Consruction,
Represented by its Partner,
B.Venkatesh, aged about 48 years,
S/o V.Balakrishnan,
No.21, Gopalsamy Nagar,
Pasumalai,
Madurai – 625 004. Petitioner
Vs.
1.The Commissioner of Commercial Taxes,
O/o The Principal and Special Commissioner of
Commercial Taxes,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Assistant Commissioner (ST),
Madurai Rural(South) Assessment Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
Madurai – 625 020. Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, calling for records pertaining to the
impugned proceedings of the second respondent in TIN:
33615163357/2007-08 dated 16.07.2019 and quash the same.
1/7
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W.P.(MD)No.15458 of 2020
For Petitioner : Mr.Raja Karthikeyan
For Respondents : Mrs.J.Padmavathy Devi,
Special Government Pleader
ORDER
This Writ Petition has been filed by the petitioner to quash the
impugned order of the second respondent dated, 16.07.2019, passed in
TIN:33615163357/2007-08.
2.The brief facts of the case are as follows:
The petitioner is the partner of Tvl.Thalapathy Construction
and Tvl.Thalapathy Construction is a registered assessee with the second
respondent. According to the petitioner, the second respondent has
passed the original assessment order dated 02.09.2009, under Section
22(2) of the TNVAT Act. Subsequently, the second respondent has
issued a notice dated 08.03.2019, proposing to revise the assessment, for
the assessment year 2007-08.
2.1.The grievance of the petitioner is that in the notice dated
08.03.2019, there was a reference dated 16.08.2016, which is totally
strange to the petitioner. The petitioner filed his detailed reply dated
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W.P.(MD)No.15458 of 2020
01.04.2019, denying the allegations made by the second respondent. In
his reply, the petitioner has also stated that since the proceeding to revise
the assessment has been initiated after a lapse of 9 ½ years from the date
of original assessment order, the same is clearly hit by limitation.
2.2.The learned counsel for the petitioner would submit that
the original assessment order has been passed by the second respondent
on 02.09.2009 for the assessment year 2007-2008 and no revision of
assessment under Section 27 of the TNVAT Act shall be made after five
years. He would further submit that even as per the amended provision of
Section 27 of the TNVAT Act, dated, 19.06.2012, the limitation of 6
years expires on 01.09.2015 itself and he would reiterate that the entire
revision of assessment proceedings initiated 9 ½ years after the date of
original assessment is barred by limitation and is liable to be quashed.
3. A detailed counter affidavit has been filed by the learned
Special Government Pleader, wherein, it was stated that the deemed
assessment order under Section 22(2) of the TNVAT Act 2006 was
passed for the assessment year 2007-2008, as per amendment issued in
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W.P.(MD)No.15458 of 2020
CT/GEGN/B1.Dept GO.Ms.No.83 dated 18.06.2012. It is further stated
that the revision of assessment notice was issued on 16.08.2016, based in
the report of the Accountant General Audit. Since no reply has been filed
by the petitioner the notice was kept pending.
4.The learned Special Government Pleader would further
submit that as per the Circular No.32/2015 (D3/25058/2015) Dated
17.08.2015, a fresh revision on assessment notice was issued on
16.07.2019. The revision of assessment order has been passed within the
time limit prescribed and as per provisions of the TNVAT Act and in
accordance with law. Hence, there is no need to interfere with the
impugned order.
5.Heard the learned counsel for the petitioner and the learned
Special Government Pleader for the respondents.
6.Admittedly, the assessment order was passed on 02.09.2009.
As per Section 27 of TNVAT Act, maximum period for revision shall be
five years and even as per the amended provision, the maximum period
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W.P.(MD)No.15458 of 2020
for revision shall be six years from the date of assessment order. In the
present case on hand. It is the specific contention of the petitioner that
the notice said to have been issued by the respondents on 16.08.2016 was
not served on him and the respondent is also not able to substantiate the
service of notice on the petitioner. The learned counsel for the
respondent would attempt to state that the petitioners did not give reply
to the notice and therefore file was kept pending and fresh notice was
given on 16.07.2019 based on the Circular No.32/2015 (D3/25058/2015)
Dated 17.08.2015. Such a plea of the respondent cannot be accepted. The
learned counsel for the petitioner relied on the judgment of the Division
Bench of this Court in M/s. M.U.A. Arumugaperumal and Sons
Vs.Additional Commercial Tax Officer (FAC), Srivilliputhur [2008 (16)
VST 188 (Mad)] has categorically found that revising the assessment
order after the time limit provided under statute is barred by limitation.
The said decision will squarely apply to the case on hand. Since, the
revision was made after a period of 9 ½ years, it is barred by limitation as
per Section 27 of TNVAT Act.
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W.P.(MD)No.15458 of 2020
7.Accordingly, the impugned order dated 16.07.2019 passed in
the proceedings in TIN:33615163357/2007-08 by the second respondent
is set aside and the Writ Petition is allowed. No costs. Consequently,
connected Miscellaneous Petition is closed.
08.04.2021
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
1.The Commissioner of Commercial Taxes,
O/o The Principal and Special Commissioner of
Commercial Taxes,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Assistant Commissioner (ST),
Madurai Rural(South) Assessment Circle,
Commercial Taxes Complex,
Dr.Thangaraj Salai,
Madurai – 625 020.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.15458 of 2020
J.NISHA BANU, J.
vrn
Order made in
W.P.(MD)No.15458 of 2020 and
WMP(MD) No.12976 of 2020
Dated 08.04.2021
https://www.mhc.tn.gov.in/judis/
