Madras High Court
M/S. Koya & Company Industries ... vs The Assistant Commissioner (Ct) on 24 August, 2021
W.P.(MD)No.11164 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.08.2021
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.11164 of 2014
and
M.P.(MD)No.1 of 2014
M/s. Koya & Company Industries (Pvt) Ltd,
(Now merged with M/s. Koya & Company
Construction Ltd),
Represented by its Managing Director,
T.K.M. Koya. ... Petitioner
Vs.
The Assistant Commissioner (CT),
Thanjavur. ... Respondent
Prayer: Writ Petition filed under Article 226 of Constitution of India, to
issue a Writ of Certiorari, calling for the records, relating to the
Assessment Order passed by the respondent in TNGST
3821966/2004-05, dated 28.05.2014 and quash the same as illegal,
without jurisdiction.
For Petitioner : Mr.A.Thiyagarajan
Senior Counsel
For Respondent : Mr.R.Sureshkumar
Government Advocate (Civil Side)
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W.P.(MD)No.11164 of 2014
ORDER
The prayer sought for is for a Writ of Certiorarified Mandamus,
calling for the records, relating to the Assessment Order passed by the
respondent in TNGST 3821966/2004-05, dated 28.05.2014 and quash the
same.
2.It is the case of the petitioner that, the petitioner is a
manufacturer of PSC and MS pipes registered as a Company under the
Companies Act. The petitioner is registered as a dealer under the
erstwhile Tamil Nadu General Sales Tax Act, (in short “TNGST Act”) in
TNGST No.3821966 also registered under the CST Act in CST No.
236175.
3.The petitioner was assessed to tax under the TNGST as well as
CST Act, as per the returns submitted by the petitioner regularly. Insofar
as the assessment year 2004-05 is concerned, which was to be dealt with
under TNGST Act, there was no proceedings initiated and was pending
as on 01.07.2005, when the Tamil Nadu Value Added Tax Act, 2006, (in
short “TNVAT Act”) came into effect. Therefore, after 01.07.2007, no
action can be taken against the petitioner for the assessment year
2004-05.
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W.P.(MD)No.11164 of 2014
4.However, the respondents had issued a best of judgment notice
on 23.04.2009 proposing to assess the petitioner on a total and taxable
turnover of Rs.24,29,46,466/- with penalty to be levied under Section 12
(3)(b) of the TNGST Act. In response to the same, the petitioner had
filed objection explaining the annual returns relating to the facts and
figure in the returns regarding works conduct purchase etc. Thereafter,
again on 31.12.2010, after the best of judgment assessment notice dated
23.04.2009, it was proposed to assess the petitioner on total and taxable
turn over of Rs.11,89,61,888/- at different rate on different turnover. The
respondent revenue had also proposed to levy penalty under Section
12(3)(b) of the TNGST Act and also levied additional sales tax and
penalty under Section 3(b) of the Additional Sales Tax Act.
5.In this context, it is the definite case of the petitioner that, in
response to the said revised pre assessment notice dated 31.12.2010,
which the petitioner received on 28.03.2011, the petitioner had given a
detailed reply on 18.05.2011 and the copy of the same along with an
acknowledgment by way of a local delivery book shows that the said
reply had been delivered to the office of the respondent, which have been
filed in the typed set of papers.
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W.P.(MD)No.11164 of 2014
6.Therefore, the petitioner was in the impression that
subsequently, on the basis of the reply submitted by the petitioner dated
18.05.2011, the respondent would consider the same and drop the
proceedings. However, a revised notice once again was issued on
16.03.2013 followed by the impugned assessment order dated
28.05.2014, wherein the proposal already made has been confirmed.
However, in the order impugned dated 28.05.2014, the earlier revised pre
assessment notice dated 31.12.2010 as well as the objection/reply
submitted by the petitioner dated 18.05.2011 has not at all even been
recorded. Therefore, without even having considered the reply given by
the petitioner and even without verifying the pre assessment notice dated
31.12.2010, straight away the present assessment order dated 28.05.2014
has been passed. Therefore, the order impugned is vitiated because of
non consideration of the reply given by the petitioner, as there had been
no whisper about the pre-assessment notice as well as the objection of
the petitioner as referred to above in the very impugned order itself.
Hence, Mr.A.Thiyagarajan, learned Senior Counsel for the petitioner
seeks indulgence of this Court to set aside the order.
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W.P.(MD)No.11164 of 2014
7.Per contra, Mr.R.Sureshkumar, learned Government Advocate
appearing for the respondent, by relying upon the averments made in the
counter affidavit as well as after having perused the original files would
submit that, the best of judgment notice was given on 23.04.2009 and
subsequently, on two occasions, the petitioner had given request letters
to the respondent Department seeking adjournments or seeking some
time to reply. According to the learned Government Advocate, on first
time, the said request letter had been given on 30.03.2013 and one more
request letter was given seeking time. Therefore, according to the
learned Government Advocate, relying upon the original of the two
letters referred to above of the petitioner assessee, which are available in
the original files, the learned Government Advocate would submit that,
except these letters, no reply whatsoever had been filed by the petitioner.
Therefore, the present stand taken by the petitioner that he had given
reply on 18.05.2011, which has not been considered by the respondent
before passing the assessment order, is untenable. Therefore, on that
ground, no interference is called for in the impugned order and the
learned Government Advocate therefore seeks dismissal of this writ
petition.
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W.P.(MD)No.11164 of 2014
8.I have considered the said rival submissions made by the learned
counsel appearing for both parties and have perused the original files
produced by the learned Government Advocate in this matter.
9.It is the definite case of the petitioner that there has been a
revised pre assessment notice dated 31.12.2010, having receipt of the
same by the petitioner on 28.03.2011, petitioner had replied on
18.05.2011 and the reply had been given personally by direct hand
delivery and acknowledgment to that effect recorded in the local delivery
book, maintained by the petitioner assesse has also been filed before this
Court. Relying upon these documents, learned Senior Counsel appearing
for the petitioner would vehemently contend that, without having
recourse to the said revised pre assessment notice as well as the
objection/reply submitted by the petitioner, since the assessment order,
which is impugned herein, has been passed, the impugned order itself is
vitiated.
10.In order to ascertain the same, the entire records produced by
the learned Government Advocate were perused by this Court, in which,
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W.P.(MD)No.11164 of 2014
nowhere, a copy of the revised pre assessment notice dated 31.12.2010 as
well as the reply dated 18.05.2011 of the petitioner are found.
11.In this regard, It is pertinent to note that, if it is a case of the
petitioner that it has given reply on 18.05.2011, as the same has not been
form part of the records maintained by the respondent, a defence can be
taken by the respondent that no such reply has been taken.
12.However, the very revised pre assessment notice dated
31.12.2010, which has been replied by the petitioner on 18.05.2011 itself
is not available in the original files. Therefore, there has been some
missing of papers, where cogently the issue has not been followed by the
respondent, it seems. If at all any revised pre assessment notice dated
31.12.2010 has been served on the petitioner and the copy of the same
has been filed in the typed set of documents of the petitioner, certainly,
that should be form part of the original files. Since only pursuant to the
said revised pre assessment notice dated 31.12.2010, it is the claim of the
petitioner that it has given reply on 18.05.2011, that should also form
part of the records.
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W.P.(MD)No.11164 of 2014
13.Neither notice nor reply since have been made available in the
original records, this Court draws an adverse conclusion that there has
been missing of some papers in the original files. Therefore, without
having considered the said developments, where notice has been given
sometime in the year 2010, for which reply had been given by the
petitioner in 2011, the impugned order since has been passed on
28.05.2014 without even having any reference to those documents, it is
prima facie unjustifiable and untenable. Therefore, on that ground, as
rightly contended by the learned Senior Counsel appearing for the
petitioner assessee, the impugned order can be interfered with.
14.In that view of the matter, this Court is inclined to dispose of
this Writ Petition with the following order:
that the impugned order is hereby set
aside and the matter is remitted back to the
respondent for reconsideration. A copy of the
reply dated 18.05.2011 submitted by the
petitioner can be obtained from the petitioner
once again and apart from the same, if any
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W.P.(MD)No.11164 of 2014
further reply or objection or input if the
petitioner wants to supply to the respondent for
reconsideration, that can also be permitted to be
collected from the petitioner and after collecting
all those documents, it is open to the respondent
to go into the merits of the said claim made by
the petitioner and accordingly, an opportunity
of being heard to the petitioner can be given,
thereafter, the needful shall be undertaken and
final order shall be passed by the respondent,
within three months.
15.With these directions, this Writ Petition is disposed of. No
costs. Consequently, connected Miscellaneous Petition is closed.
24.08.2021
Index : Yes/No
sm
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.11164 of 2014
R.SURESH KUMAR ,J.
sm
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
The Assistant Commissioner (CT).
Thanjavur.
Order made in
W.P.(MD)No.11164 of 2014
Dated:
24.08.2021
https://www.mhc.tn.gov.in/judis/
