Madras High Court
Tvl.Akshayaa Yarn vs The Assistant Commissioner (St) on 15 December, 2021
W.P.Nos.12373 of 2020 and etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.12.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.Nos.12373, 12376, 12378, 12380 & 12381 of 2020
and
W.M.P.Nos.15232, 15235, 15239, 15244 & 15248 of 2020
(Through Video Conferencing)
Tvl.Akshayaa Yarn,
Represented by its Proprietor,
B.Senthil Raja,
Shop No.7, M.S.S.Complex,
Uthukuli Road, Tirupur – 641 601,
Tirupur District. ... Petitioner
in all W.Ps.
Vs.
The Assistant Commissioner (ST),
(Central – 1) Circle,
Tirupur. ... Respondent
in all W.Ps.
Writ Petitions filed under Article 226 of Constitution of India, for
issuance of a Writ of Certiorari, to call for the records on the files of the
respondent in TIN No.33382402621/2012-13, TIN No.33382402621/2015-
16, TIN No.33382402621/2014-15, TIN No.33382402621/2013-14 & TIN
No.33382402621/2016-17 respectively, all dated 04.07.2020 and quash the
same as being without jurisdiction and authority of law and contrary to the
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W.P.Nos.12373 of 2020 and etc.
principles laid down in the Judgment rendered by this Court in W.A.No.4292
of 2019 on 04.03.2020.
For Petitioner : Mr.R.Senniappan in all W.Ps.
For Respondent : M/s.Amirta Poonkodi Dinakaran
Government Advocate in all W.Ps.
COMMON ORDER
These Writ Petitions have been filed for issuance of Writ of Certiorari,
to call for the records relating to the impugned Notices dated 04.07.2020 of
the respondent for Assessment Years 2012-2013 to 2016-2017 and to quash
the same as being without jurisdiction and authority of law and contrary to
principles laid down in the Judgment dated 04.03.2020 passed by the
Division Bench of this Court in W.A.No.4292 of 2019.
2. It is case of the petitioner that the petitioner had earlier filed
W.P.Nos.11078, 11373 to 11376 of 2017 challenging the orders of
assessment in respect of the Assessment Years 2012-2013 to 2016-2017.
This Court, by its order dated 28.04.2017, had set aside these assessment
orders and had remitted the case back to the Assessing Officer to re-do the
assessment once again after giving an opportunity of hearing to the petitioner
and pass appropriate orders on merits, within a period of six weeks from the
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W.P.Nos.12373 of 2020 and etc.
date of receipt of a copy of the order. The operative portion of the said order
reads as under:-
3.It is seen that the impugned orders of assessment were
passed solely on the reason that the other end dealers
from whom, the petitioner effected the purchase have not
paid tax. It is further seen that the petitioner, while
replying to the notice of proposal, apart from contending
that the petitioner cannot be fastened with the liability of
the selling dealer, has also sought for personal hearing.
The Assessing Officer, without affording the personal
hearing, passed the orders of assessment only by stating
that the petitioner did not take any effort to prove that the
selling dealer has paid the tax. When a personal hearing
is sought for by the petitioner, the Assessing Officer,
before coming to a conclusion that the petitioner did not
prove the payment of tax by the selling dealer, ought to
have given an opportunity to the petitioner to appear in
person and satisfy as to how such conclusion is either
factually wrong or legally not sustainable, as it is
specifically contended by the petitioner that they cannot
be fastened with such liability. Therefore, I am of the
view that the matter has to go back to the Assessing
Officer to redo the assessment once again, after giving an
opportunity of hearing to the petitioner. Accordingly, the
writ petitions are allowed and the impugned orders of
assessment are set aside and the matter is remitted back
to the Assessing Officer to redo the assessment once
again after giving an opportunity of personal hearing to
the petitioner. Such exercise shall be done by the
Assessing Officer within a period of six weeks from
the date of receipt of a copy of this order. No costs.
The connected miscellaneous petitions are closed.
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W.P.Nos.12373 of 2020 and etc.
3. The learned counsel for the petitioner submits that pursuant to the
above order dated 28.04.2017, the respondent issued Notice dated
30.05.2017 fixing the date for personal hearing on 05.06.2017 at 11.30 a.m.
and asked the petitioner to appear before the respondent with the following
records for verification:-
i. Purchase Bills for all years (2013-14 to 2016-17)
ii. Bank Statement
iii. Income Tax Statement.
4. It is further submitted that the petitioner replied to the said notice
enclosing the certain Judgments for reference vide Letter dated 05.06.2017. It
is also submitted that after a lapse of almost three years since the issue of
Notice dated 30.05.2017, the respondent has issued the impugned Notices. It
is submitted that the impugned orders have been passed contrary to the time
line set by this Court vide its order dated 28.04.2017 in W.P.Nos.11078,
11373 to 11376 of 2017.
5. The learned counsel for the petitioner further submits that the
respondent had also filed W.M.P.Nos.18384 to 18388 of 2020 for extension
of time granted in W.P.Nos.11078, 11373 to 11376 of 2017 which were
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W.P.Nos.12373 of 2020 and etc.
dismissed by this Court vide its order dated 24.08.2021 and therefore it is not
open for the respondent to proceed further with the impugned Notices dated
04.07.2020 after a lapse of three years since the order was passed on
28.04.2017 in W.P.Nos.11078, 11373 to 11376 of 2017.
6. The learned Government Advocate, on the other hand, submits that
the order came to be passed just before the GST was introduced with effect
from 01.07.2017 and that after the GST was implemented, four officers were
transferred and four different officers were assumed. It is submitted that as
there was re-organization in various places, the orders could not be passed on
earlier occasion within the time limit set by the Court.
7. The learned Government Advocate further submits that the time
fixed by this Court while passing the order dated 28.04.2017 in
W.P.Nos.11078, 11373 to 11376 of 2017 cannot come into the legitimate
way of the respondent proceeding with the re-assessment proceedings. She
further submits that as a matter of fact, orders also could not have been
passed as guidelines pursuant to the order in J.K.M.Graphics Solutions
Private Limited, Chennai – 112 and others Vs. The Commercial Tax
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W.P.Nos.12373 of 2020 and etc.
Officer, Vepery Assessment Circle, Chennai -6, 2017 SCC OnLine Mad
669 : (2017) 99 VST 343 were being framed by the respondent.
8. It is submitted that the respondent had also framed the guidelines
and had simultaneously approached this Court with a Review Petition No.173
of 2018 in J.K.M.Graphics Solutions Private Limited case referred to
supra and that the aforesaid Review Petition was dismissed on 12.02.2021.
Pursuant to the dismissal of the aforesaid Review Petition filed by the
respondent, the Principal Secretary / Commissioner of Commercial Taxes has
issued Circular No.5/2021, dated 24.02.2021 and that guidelines are being
followed.
9. The learned Government Advocate further submits that even if the
orders were passed earlier pursuant to orders in W.P.Nos.11078, 11373 to
11376 of 2017, the matter would have been challenged and once again
remitted back in the light of the order passed by this Court in
J.K.M.Graphics Solutions Private Limited case referred to supra. It is
submitted that since the Principal Secretary / Commissioner of Commercial
Taxes has now issued the aforesaid Circular, the case of the petitioner will be
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W.P.Nos.12373 of 2020 and etc.
considered based on the said Circular.
10. Heard the learned counsel for the petitioner and the learned
Government Advocate appearing for the respondent and perused the orders of
this Court in W.P.Nos.11078, 11373 to 11376 of 2017.
11. Though it is submitted that by an order dated 24.08.2021,
W.M.P.Nos.18384 to 18388 of 2020 filed for extension of time granted in
W.P.Nos.11078, 11373 to 11376 of 2017 have been dismissed, the fact
remains that the order came to be passed during the cusp of implementation
of GST with effect from 01.07.2017. After the GST was implemented, the
offices of the Commercial Tax Department and Central Excise and Service
Tax Department were being re-organized. The jurisdictions were being re-
drawn.
12. It is noticed that Principal Secretary / Commissioner of Commercial
Taxes has now issued the Circular No.5/2021, dated 24.02.2021. Ultimately,
the purpose of remanding the case back to the respondent was to pass
appropriate orders after ascertaining whether the petitioner was indeed
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W.P.Nos.12373 of 2020 and etc.
entitled to Input Tax Credit or whether the respondent was justified in
demanding the tax. There cannot be any embargo on the respondent from
passing orders even though the time specified had lapsed and merely because
the respondent either failed to approach the Court order by explaining the
delay.
13. Be that as it may, the case of the petitioner has to be considered on
merits. If the petitioner had availed input tax credit validly based on the
invoice issued by the supplier, question of demanding tax from the petitioner
will not arise if other conditions stipulated under the Rules were complied by
the petitioner. Merely because the supplier failed to disclose the turnover in
the return would not mean the input tax credit would be required to be
recovered from the respondent. There are no merits in these Writ Petitions.
However, since the Principal Secretary / Commissioner of Commercial Taxes
has now issued the Circular No.5/2021, dated 24.02.2021 to specifically deal
with the situation, the case has to be examined in the light of the said
Circular.
14. Considering the same, the respondent is directed to pass a speaking
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W.P.Nos.12373 of 2020 and etc.
order on merits within a period of the four weeks from the date of receipt of a
copy of this order. Needless to state that before passing such order, the
petitioner shall be heard.
15. This Writ Petitions stand disposed with the above directions. No
cost. Consequently, connected Miscellaneous Petitions are closed.
15.12.2021
Index : Yes/No
Internet : Yes/No
jen
To
The Assistant Commissioner (ST),
(Central – 1) Circle,
Tirupur.
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https://www.mhc.tn.gov.in/judis
W.P.Nos.12373 of 2020 and etc.
C.SARAVANAN, J.
jen
W.P.Nos.12373, 12376, 12378, 12380
& 12381 of 2020 and
W.M.P.Nos.15232, 15235, 15239,
15244 & 15248 of 2020
15.12.2021
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