Madras High Court
M/S. S.R.Raja Cements vs The Assistant Commissioner (St) on 14 December, 2021
W.P.No.895 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
WP.No.895 of 2021
and
WMP.No.975 of 2021
[Video Conferencing]
M/s. S.R.Raja Cements
Rep by its Proprietor
No.34, Ramakrishna Street
West Tambaram
Chennai – 600 045. ....Petitioner
-Vs.-
The Assistant Commissioner (ST)
Tambaram Assessment Circle
Chennai – 600 045. .....Respondent
Prayer :-
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari calling for the records of the respondent in his
proceedings in TIN/33130881362/2010-11, quash the order dated
29.05.2019 passed therein.
For Petitioner : Mr.P.V.Sudakar
For Respondent : Mr.Richardson Wilson, AGP.,
1/7
https://www.mhc.tn.gov.in/judis
W.P.No.895 of 2021
ORDER
In this Writ Petition, the petitioner has challenged the impugned order
dated 29.05.2019 which has been passed purportedly to give effect to the
order dated 07.01.2019 passed by the Appellate Tribunal in STA.Nos.211
to 215 of 2015.
2.These Appeals pertain to the assessment years 2008-09 to 2013-14.
The Appellate Tribunal by the aforesaid order had set aside the order of the
Appellate Commissioner and thereby restored the case to the original
authority who had passed orders on 13.10.2014 for the assessment year
2010-11 and also for other assessment years.
3.The petitioner had meanwhile filed an appeal before the Hon'ble
Division Bench of this Court against the order of the Appellate Tribunal
dated 07.01.2019 in T.C.R Nos.11 to 15 of 2020 which appeal came to be
disposed by an order dated 03.02.2021. By the aforesaid order, the penalty
which was upheld by the Appellate Tribunal has been set aside. The
relevant portion of the said decision is extracted hereunder:
https://www.mhc.tn.gov.in/judis
W.P.No.895 of 2021
“16. For the assessment year 2010~11, the amendment,
having been brought into force with effect from 19.8.2010, has
fallen in the middle of the assessment year, which commenced
from 01.4.2010. This aspect should have been noted by the
Assessing Officer. But, there was no reference to the same nor
the Revenue raised any issue with regard to that before the
Tribunal.
17. .....
18. .....
19. In addition to that, what was alleged was that the
input tax credit was wrongly availed. This finding of the
Assessing Officer was held to be factually incorrect as the
receipts were not sale, but bank charges and interest, where
the cheques had bounced. The concern expressed by the
learned Special Government Pleader is with regard to the
effect of Section 27(2) qua Section 27(4) of the Act. In our
considered view, such an issue does not arise for consideration
in these revisions and since it being a legal question, it is left
open to be agitated before the appropriate forum.
20. The above finding rendered will parallelly enure in
favour of the assessee in respect of equal time addition made
for the assessment year 2013~14, which was set aside by the
First Appellate Authority, which order we confirm in this
common judgment.
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W.P.No.895 of 2021
21. In fine,
(i) the question, which arose for consideration namely as
to whether Section 63 of the Act contemplates a total embargo
on the First Appellate Authority or the Tribunal to admit
documents is answered in favour of the petitioner/assessee;
(ii) The other questions, which have been raised, are all
factual in nature and as we have upheld the orders passed by
the First Appellate Authority deleting penalty under Section
27(3)/27(4) of the Act as well as equal time addition, those
questions do not arise for consideration.”
4.The impugned order dated 29.05.2019 for the assessment year
2010-11 is prior to the order of the Division Bench of this High Court dated
03.02.2021 in T.C.R Nos.11 to 15 of 2020 which included the penalty
which was upheld by the Appellate Tribunal for the assessment year 2010-
11 which was the subject matter of the appeal before the Honble Division
Bench in T.C.R Nos.11 to 15 of 2020.
5.Considering the same, I am inclined to quash the impugned order
and remit the case back to the respondent to pass appropriate orders after
considering the order of the Division Bench of this Court dated 03.02.2021
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W.P.No.895 of 2021
in T.C.R Nos.11 to 15 of 2020.
6.This exercise shall be carried out by the respondent within a period
of four weeks from the date of receipt of a copy of this order. Considering
the fact that the issue relating to the estimation has already been remanded
back to the respondent by the Appellate Commissioner vide order dated
31.12.2014 and other issues, the respondent may also consider and pass
consolidated order before issuing any recovery notice to the petitioner.
7.The Writ Petition is disposed of with the above directions.
Consequently, connected miscellaneous petition is closed. No costs.
14.12.2021
pgp
Index : Yes / No
Internet : Yes / No
To
The Assistant Commissioner (ST)
Tambaram Assessment Circle
Chennai – 600 045.
https://www.mhc.tn.gov.in/judis
W.P.No.895 of 2021
C.SARAVANAN, J
pgp
W.P.No.895 of 2021
https://www.mhc.tn.gov.in/judis
W.P.No.895 of 2021
Dated : 14.12.2021
https://www.mhc.tn.gov.in/judis
