Madras High Court

M/S.Lal Construction Company vs Assistant Commissioner (Ct) on 6 August, 2021

                                                                           WP Nos.5427 & 5428 of 2014




                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated: 06.08.2021

                                                          CORAM:

                                   THE HON'BLE MR. JUSTICE S.M.SUBRAMANIAM

                                              WP Nos.5427 & 5428 of 2014
                                               and M.P.Nos.1 + 1 of 2014

                     M/s.Lal Construction Company,
                     No.8, 3rd Floor, Lokesh Enclave,
                     No.19, Club Road,
                     Chennai – 600 031                                .. Petitioner in both WPs.

                                                           Vs

                     Assistant Commissioner (CT),
                     Esplanade I Assessment Circle,
                     Chennai – 600 001.                               .. Respondent in both WPs.

COMMON PRAYER: These Writ Petitions are filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorarified Mandamus, calling for the records of the respondent and quash the revision of assessment proceedings in TIN No. 33830100418/2006-07 and TIN No. 33830100418/2007-08 dt 15.11.2013 wherein goods purchased from other States are assessed at higher rate of taxes and direct the respondent to rectify the mistakes and pass orders considering the representation filed on 30.1.2014 after giving an opportunity of personal hearing.

                                      For Petitioner       : Mr.C.Baktha Siromoni
                                      in both WPs

For Respondents : Mr.V.Veluchamy (R1 & R2) in both WPs Government Advocate

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WP Nos.5427 & 5428 of 2014

COMMON ORDER

The relief sought for in the present writ petitions is to call for the

records in the assessment proceedings dated 15.11.2013 for the

Assessment Years 2006-07 and 2007-08 and quash the same and direct

the respondent to rectify the mistake and pass orders considering the

representation filed by the petitioner on 30.01.2014.

2. The petitioner is a registered dealer under the Tamil Nadu Value

Added Tax Act. The petitioner is an assessee in the files of the

respondent. The petitioner is doing works contract in the State and also

in other States.

3. The learned counsel for the petitioner mainly contended that

assessment orders were passed by the respondent for the assessment

years 2006-07 and 2007-08. However, there was a mistake in not

considering the judgment of the Hon'ble Supreme Court and the

authorities have further failed to consider the provisions of the Act in the

right perspective.

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WP Nos.5427 & 5428 of 2014

4. It is contended that on account of an erroneous implementation

of the provisions of the Act, the mistake occurred and further the

principles laid down by the Hon'ble Supreme Court has not been

followed by the respondent. Thus, the petitioner submitted a

representation on 30.01.2014 for rectification of the mistake and the said

application was not considered. Therefore, the petitioner has moved the

present writ petition.

5. It is pertinent to note that the petitioner submitted a

representation on 30.01.2014 and it was sent by registered post. The writ

petitions itself were filed on 19.02.2014 within a period of 12 days from

the date of sending the representation. The petitioner has not even

allowed the respondent to look into the representation. Simply by filing

the representation, he has approached the Court by citing that there was a

mistake in the assessment orders and he has filed an application for

rectification of mistake and therefore, the impugned assessment orders

have to be quashed and fresh assessment orders need to be passed.

6. Such conduct of a dealer can never be encouraged. The

petitioner is also bound to follow the procedures contemplated under the

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WP Nos.5427 & 5428 of 2014

Act. If at all an assessment order is passed and the original authority has

not considered certain grounds raised by the petitioner or there was

violation of provisions of the Act on considering the return filed by the

assessee, then the petitioner is bound to prefer an appeal before the

appellate authority, in the prescribed form and in compliance with the

provisions of the Act.

7. Such rectification applications are filed by the same assessee in

order to avoid filing of a statutory appeal by making pre-deposits.

Therefore, this Court has to consider whether the rectification application

filed is based on the mistake or non consideration of certain

points/grounds raised by the petitioner.

8. In this regard, the learned counsel for the petitioner relied on

para 3 of the representation submitted by the writ petitioner on

30.01.2014. Para 3 reads as under:

“We would like to point out that the TDS deductions 241731.00 is also included in the Taxable turnover and we are not provided the deduction of 30% for the labour charges as per Rule 8(5) of TNVAT Rules. When you have

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WP Nos.5427 & 5428 of 2014

completed assessment under Section 5 of TNVAT act you should have provided this deduction of 30% for the labour charges as per law. We also wish to state that we have paid labour cess/service tax for this position of labour charges at 30% of the taxable turnover. This 30% turnover attracts both labour cess / service tax & also sale tax as sales tax was levied on the entire turnover. As per the decision of the Apex Court reported in Imagtic Creative Vs. State of Karnataka both the levies of labour cess/service tax and sales tax are mutually exclusive. So when labour cess/service tax is paid on 30% on the labour charges than no sales tax payable for the same 30% of the turnover again.”

9. Perusal of the above paragraph would show that the petitioner

has raised certain grounds for appeal. The petitioner wanted rectification

in order to alter the findings on certain grounds. Such grounds may be

raised in an appeal, however, cannot be considered as a ground for the

purpose of rectification of mistake.

10. Mistake, if any in simple terms are committed by an authority,

then such mistakes can alone be rectified. Under the guise of

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WP Nos.5427 & 5428 of 2014

rectification of mistake, an assessee cannot be permitted to adjudicate the

grounds for appeal. There is a distinction between the grounds for

appeal raised on merits and rectification of mistake. Typographical

errors, certain mistakes in language, etc., may be corrected in a

rectification petition. Further, if any ground on merits, is raised then the

petitioner is bound to file an appeal before the appellate authority by

following the procedures contemplated under the Act.

11. In the present case, perusal of the representation dated