Madras High Court
Vinayaga Friends Association vs The Principal Secretary To ... on 10 August, 2021
W.P. Nos. 1523 to 1525 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P. Nos. 1523 to 1525 of 2014 and
W.M.P. Nos. 1, 1 and 1 of 2014
Vinayaga Friends Association,
Represented by its Secretary D.Baskaran,
No.388/14, Thuraipakkam,
Pallavaram, Kovilampakkam,
Kancheepuram District ... Petitioner in
W.P. No. 1523 of 2014
Pulla Recreation Center,
Represented by its Secretary N.S.Arjun,
Old No.152, New No.371,
Konnur High Road,
Ayanavaram,
Chennai - 600 023. ... Petitioner in
W.P. No. 1524 of 2014
The Park Club,
Represented by its Secretary Geetha Kumar,
No.64, 100 feet Road,
Padi,
Chennai - 600 050. ... Petitioner in
W.P. No. 1525 of 2014
-vs-
1/9
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W.P. Nos. 1523 to 1525 of 2014
1. The Principal Secretary to Government,
Commercial Taxes and Registration Department,
Government of Tamil Nadu,
Fort St.George,
Chennai - 600 009.
2. The Managing Director,
Tamil Nadu State Marketing Corporation Limited,
CMDA Tower - II, 4th Floor,
Gandhi Irvin Bridge Road, Egmore,
Chennai - 600 008. ... Respondents
1 & 2 in all W.Ps
3. The Manager,
Tamil Nadu State Marketing Corporation Limited,
IMFS Depot, Thirumazhsai - Unit III,
Chennai - 602 107. ... 3rd Respondent
in W.P. No. 1523 of 2014
4. The Manager,
Tamil Nadu State Marketing Corporation Limited,
IMFS Depot, Chennai (South District),
Ambattur – III,
Chennai - 602 107. ... 3rd Respondent
in W.P. No. 1524 of 2014
5. The Manager,
Tamil Nadu State Marketing Corporation Limited,
IMFS Depot, Ambattur – III,
B-4, Industrial Estate,
Chennai - 602 107. ... 3rd Respondent
in W.P. No. 1525 of 2014
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W.P. Nos. 1523 to 1525 of 2014
Prayer in W.P. No. 1523 of 2014: Writ Petition filed under Article 226
of the Constitution of India, praying for issuance of Writ of Certiorari
calling for the records pertaining to the impugned order dated 13.12.2013
made in Na.Ka.Pa.Vay.01/A1/2013 passed by the third respondent and
quash the same.
Prayer in W.P. No. 1524 of 2014: Writ Petition filed under Article 226
of the Constitution of India, praying for issuance of Writ of Certiorari
calling for the records pertaining to the impugned order dated 13.12.2013
made in R.C.1046/2013/A1 passed by the third respondent and quash the
same.
Prayer in W.P. No. 1525 of 2014: Writ Petition filed under Article 226
of the Constitution of India, praying for issuance of Writ of Certiorari
calling for the records pertaining to the impugned order dated 16.12.2013
made in Pdl.No.105/A5/2013 passed by the third respondent and quash
the same.
For Petitioners
in all W.Ps : Mr.R.Thiagarajan
For Respondents
in all W.Ps : Mr.V.Veluchamy
Govt. Advocate for R1
No appearance for R2 and R3
COMMON ORDER
The relief sought for in the present Writ Petitions is to call for the
records in pursuant to the orders dated 13.12.2013 and 16.12.2013
passed by the third respondent and to quash the same.
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W.P. Nos. 1523 to 1525 of 2014
2. The orders impugned is a demand seeking differential amount
from the petitioners. The petitioners being a recreation club are entitled
to sell alcoholic liquor to its members for consumption within the club
premises. The petitioners have issued FL 2 license and they are
complying with the conditions of license scrupulously without any
deviation. The Government of Tamil Nadu issued G.O.Ms.No.139,
Commercial Taxes and Registration (B1) Department dated 08.11.2013
amending the second schedule to the Tamil Nadu Value Added Tax Act,
2006. By the said GO, there has been a revision of the rate of tax levied
at the second point of sale in the State. The issue raised in this regard
were challenged by the other similar placed petitioners in W.P. (MD)
Nos. 19910 of 2013 etc., batch and the Hon'ble Division Bench of the
Madurai Bench of High Court delivered a Judgment on 17.12.2019 and
the relevant paragraphs are extracted hereunder:
"9. As already indicated above, the grievance of
the petitioners stands narrowed down only to this period
of the transactions in relation to the aforesaid financial
year and therefore, even though it was neither a benefit
nor an exemption, yet inflicting an imposition later on
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W.P. Nos. 1523 to 1525 of 2014
clearly amounts to retrospectively realising a tax on the
sale of the goods which under the impugned Government
Order was not leviable to tax for the aforesaid period.
Thus, the burden or the liability on the petitioners for the
said period as created by the notices issued to the
petitioners by the respondent Tax Department are
unsustainable in law. The same, in our opinion, amounts
to an unreasonable and an unfair imposition of liability
which does not find support from the statutory
provisions, as a taxing statue in our opinion has to be
construed strictly for imposing any liability.
10. It is trite that a fiscal legislation imposing tax
is generally governed by the normal presumption that it
is not retrospective and it is a cardinal principle of tax
law that the law to be applied is that which is force for
the assessment year in question until otherwise provided
expressly or by necessary implication. The rule applies to
the charging sections and other substantive provisions. A
provision which has the effect of opening up liability will
be subject to the rule of strict construction. A legislation
cannot be given a greater retrospectivity than is
expressly mentioned in the statue nor can such a
provision be construed to initiate recovery of liability or
commence proceedings in relation thereto in the absence
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W.P. Nos. 1523 to 1525 of 2014
of any charging provision. The impugned realisation
sought to be made from the petitioners through the
notices of demand would ultimately turn out to be unduly
oppressive and confiscatory in nature, inasmuch as by
virtue of the impugned liability created under the
provisions under challenge, tax would be realised in
respect of transactions that have already attained finality
and stand foreclosed as the goods have already been
supplied by the petitioners to their customers who are no
longer available for meeting any such liability that has
been created subsequently by virtue of the impugned
Government Order.
11. We also find that the period of liability in
respect of all the petitioners extending from 01.04.2013
to 07.11.2013 had been protected by an interim measure
through the orders of this Court.
12. Accordingly, the Writ Petitions are allowed
and the imposition of liability through the demand
notices issued under the impugned Government Order in
respect of the period from 01.04.2013 to 07.11.2013 at
the third point of sale is struck down. However, there
shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed."
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W.P. Nos. 1523 to 1525 of 2014
3. In view of the findings in the Judgment cited supra, the
impugned orders passed by the third respondent in proceedings
Nos.Na.Ka.Pa.Vay.01/A1/2013 dated 13.12.2013, R.C.1046/2013/A1
dated 13.12.2013 and Pdl.No.105/A5/2013 dated 16.12.2013 are quashed
and the Writ Petitions stand allowed. However, there shall be no order as
to costs. Consequently, connected Miscellaneous Petitions are closed.
10.08.2021
Index: Yes
Speaking Order: Yes
vji
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W.P. Nos. 1523 to 1525 of 2014
To
1. The Principal Secretary to Government,
Commercial Taxes and Registration Department,
Government of Tamil Nadu,
Fort St.George,
Chennai - 600 009.
2. The Managing Director,
Tamil Nadu State Marketing Corporation Limited,
CMDA Tower - II, 4th Floor,
Gandhi Irvin Bridge Road, Egmore,
Chennai - 600 008.
3. The Manager,
Tamil Nadu State Marketing Corporation Limited,
IMFS Depot, Thirumazhsai - Unit III,
Chennai - 602 107.
4. The Manager,
Tamil Nadu State Marketing Corporation Limited,
IMFS Depot, Chennai (South District),
Ambattur – III,
Chennai - 602 107. .
5. The Manager,
Tamil Nadu State Marketing Corporation Limited,
IMFS Depot, Ambattur – III,
B-4, Industrial Estate,
Chennai - 602 107.
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W.P. Nos. 1523 to 1525 of 2014
S.M.SUBRAMANIAM, J.
vji
W.P. Nos. 1523 to 1525 of 2014
and
W.M.P. Nos. 1, 1 and 1 of 2014
10.08.2021
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