Madras High Court
M/S.Sisco Medicals Device ... vs The Assistant Commissioner (Ct) on 4 August, 2021
WA.Nos.1843 & 1844 of 2021
In the High Court of Judicature at Madras
Dated : 04.8.2021
Coram
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Justice Mr.SATHI KUMAR SUKUMARA KURUP
Writ Appeal Nos.1843 & 1844 of 2021 and
CMP.Nos.11658 and 11670 of 2021
M/s.Sisco Medicals Device Private
Limited, rep.by its Managing Director
Vivek Bajaj ...Appellant
Vs
The Assistant Commissioner (CT),
Nandambakkam Assessment Circle,
No.17, Loganathan Street,
Choolaimedu, Chennai-94 ...Respondent
APPEALS under Clause 15 of the Letters Patent against the
common order dated 11.6.2021 made in W.P.Nos.2083 and 2084 of
2017.
For Appellant : Mr.T.Pamod Kumar Chopda
For Respondent: Mr.S.John J.Raja Singh, GA
COMMON JUDGMENT
(Judgment was delivered by T.S.SIVAGNANAM,J)
We have elaborately heard Mr.T.Pramod Kumar Chopda, learned
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WA.Nos.1843 & 1844 of 2021
counsel appearing for the appellant and Mr.S.John J.Raja Singh,
learned Government Advocate accepting notice for the respondent.
2. These appeals, filed by the writ petitioner, are directed against
the common order dated 11.6.2021 in W.P.Nos.2083 and 2084 of
2017.
3. The appellant, which is a registered dealer under the
provisions of the Central Sales Tax Act, 1956 (for short, the CST Act)
and the Tamil Nadu Value Added Tax Act, 2006 (for brevity, the TNVAT
Act), filed the said writ petitions challenging the assessment orders (i)
dated 15.11.2016 for the assessment year 2008-09 and (ii) dated
08.12.2016 for the assessment year 2009-10 under the CST Act. The
said writ petitions were disposed of with certain directions. The learned
Single Judge held that the assessments were without jurisdiction since,
by virtue of the fiction introduced in the Proviso to Section 22(2) of the
TNVAT Act, there was deemed assessment as on 30.6.2012 and
therefore, the assessment orders passed by the respondent were
without jurisdiction.
4. The appellant is not aggrieved by such a finding, but is
aggrieved by the findings and directions issued in paragraphs 40 to 42
of the common impugned order, which read as hereunder :
“40. Therefore, the respondent could
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WA.Nos.1843 & 1844 of 2021
only issue a notice under section 27 of the
Tamil Nadu Value Added Tax Act, 2006 to
revise the deemed assessment. However, the
respondent has proceeded to pass the
impugned orders dated 14.11.2016 and
08.12.2016 as if the old provisions were in
force.
41. Therefore, the assessment in the
impugned notices are liable to be quashed. At
the same time, the impugned orders which
stands quashed now by this order shall be
treated as notice issued to the petitioner under
section 27 of the Tamil Nadu Value Added Tax
Act, 2006 for the respective assessment years.
The respondent may also at its discretion issue
appropriate corrigendum, if any, within a
period of thirty (30) days from date of receipt
of this order. The petitioner is given liberty to
file appropriate reply and substantiate its case
to articulate the correct basis to reopen the
deemed assessment before the respondent by
filing appropriate reply. This exercise shall be
completed within a period of thirty (30) days
thereafter.
42. The respondent shall thereafter
endeavour to pass appropriate orders on
merits in accordance with law after considering
all the submissions of the petitioner within a
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WA.Nos.1843 & 1844 of 2021
period of ninety (90) days from the date of
receipt of this order, since the dispute pertains
to the Assessment Years 2008-2009 and 2009-
2010.”
5. The learned Single Judge observed that the Assessing Officer
could only issue a notice under Section 27 of the TNVAT Act to revise
the deemed assessment. To that extent, there can be no quarrel as it
is a settlement of law and it is well settled that a revision of
assessment could be only under Section 27 of the TNVAT Act. Equally,
the learned Single Judge is right in observing that the Assessing Officer
could not have proceeded under Section 22(2) of the TNVAT Act and
therefore, the learned Single Judge has rightly quashed the impugned
assessment orders.
6. However, after doing so, the learned Single Judge directed the
impugned assessment orders to be treated as notices under Section 27
of the TNVAT Act. The question is as to whether such an exercise could
be done by the Assessing Officer.
7. Section 27 of the TNVAT Act deals with assessment of escaped
turnover and wrong availment of input tax credit. Sub-Section (2) of
Section 27 of the TNVAT Act states that where, for any reason, the
input tax credit has been availed wrongly or where any dealer
produces false bills, vouchers, declaration certificate or any other
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WA.Nos.1843 & 1844 of 2021
documents with a view to support his claim of input tax credit or
refund, the Assessing Authority shall, at any time, within a period of
five years from the date of order of assessment, reverse input tax
credit availed and determine the tax due after making such an enquiry,
as it may consider necessary.
8. Thus, a limitation has been prescribed under Sub-Section (2)
of Section 27 of the TNVAT Act to issue notice for revision of
assessment and consequential direction to reverse the input tax credit.
In terms of the common impugned order before us, the appellant
herein has been assessed for both the assessment years as on
30.6.2012 by virtue of the deeming provision and that shall be
reckoned as the date, on which, the assessments have been
completed. If that is so, as of now, i.e. 2021, the Court would not be
justified in directing the assessment orders, which were impugned in
the said writ petitions, to be treated as notices under Section 27 of the
TNVAT Act, as it will be clearly time barred since the time limit would
expire as early as 2018. Therefore, to that extent, the common
impugned order passed by the learned Single Judge calls for
interference.
9. The learned counsel appearing for the appellant further points
out that the learned Single Judge has made an observation that no
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WA.Nos.1843 & 1844 of 2021
document was produced by the appellant to establish that there was a
fire accident in the godown of the appellant and that the stocks of the
appellant were lost by the floods, which occurred during November/
December 2015.
10. Before us, the appellant has filed an additional typed set of
papers containing a copy of the first information report registered in
Cr.No.1404 of 2012 on the file of Mangadu Police Station dated
14.8.2012, which would go to show that the fire accident had taken
place in the godown of the appellant.
11. Furthermore, the learned counsel for the appellant submits
that the learned Single Judge observed as if there were more than one
godown for the appellant, which is factually incorrect as there was only
one godown, which was ravaged because of the fire accident that took
place on 13.8.2012.
12. The learned Government Advocate appearing for the
respondent points out that the relevant assessments were under the
CST Act, that the Assessing Officer was fully competent and
empowered to issue the notices under Section 22(2) of the TNVAT Act
and that the direction issued by the learned Single Judge to treat the
assessment orders as notices under Section 27 of the TNVAT Act is
also sustainable.
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WA.Nos.1843 & 1844 of 2021
13. Section 9(2) of the CST Act states that subject to the other
provisions of the CST Act and the Rules made thereunder, the
Authorities for the time being empowered to assess, re-assess, collect
and enforce payment of any tax under general sales tax law of the
appropriate State shall, on behalf of the Government of India, assess
re-assess, collect and enforce payment of tax, including any interest or
penalty payable by a dealer under the CST Act as if the tax or interest
or penalty payable by such a dealer under the CST Act is a tax or
interest or penalty payable under the general sales tax law of the
State; and for this purpose they may exercise all or any of the powers
they have under the general sales tax law of the State; and the
provisions of such law, including provisions relating to returns,
provisional assessment, advance payment of tax, registration of the
transferee of any business, imposition of the tax liability of a person
carrying on business on the transferee of, or successor to, such
business, transfer of liability of any firm or Hindu undivided family to
pay tax in the event of the dissolution of such firm or partition of such
family, recovery of tax from third parties, appeals, reviews, revisions,
references, refunds, rebates, penalties, charging or payment of
interest, compounding of offences and treatment of documents
furnished by a dealer as confidential, shall apply accordingly.
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WA.Nos.1843 & 1844 of 2021
14. Therefore, the General Sales Tax Law of the State of Tamil
Nadu in the instant case is the TNVAT Act and therefore, in terms of
the above provision, the provisions of the TNVAT Act and the Rules
framed thereunder would fully apply and govern the assessment
proceedings under the CST Act.
15. For all the above reasons, the writ appeals are allowed and
the order and directions issued by the learned Single Judge in
paragraphs 41 and 42 of the common impugned order are set aside.
Writ Petition Nos.2083 and 2084 of 2017 are allowed as prayed for. No
costs. Consequently, the connected CMPs are closed.
04.8.2021
To
The Assistant Commissioner (CT), Nandambakkam Assessment Circle,
No.17, Loganathan Street, Choolaimedu, Chennai-94
RS
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WA.Nos.1843 & 1844 of 2021
T.S.SIVAGNANAM,J
AND
SATHI KUMAR SUKUMARA KURUP,J
RS
WA.Nos.1843 & 1844 of 2021 and
CMP.Nos.11658 and 11670 of 2021
04.8.2021
https://www.mhc.tn.gov.in/judis/
