Madras High Court
M/S.Guru Constructions vs The Assistant Commissioner (Ct) on 17 February, 2021
W.A.Nos.637 to 639 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.02.2021
CORAM :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
W.A.Nos.637 to 639 of 2021
and
C.M.P.Nos.2830 & 2831 of 2021
M/s.Guru Constructions,
Rep. by its Partner G.Jyothivel,
Civil Contractors,
No.70/128-A, Ayya Gounder Street,
A.Valappadi Post, Valappadi Taluk,
Selam District. ...Appellant in all cases
Vs
The Assistant Commissioner (CT),
Salem Rural Circle,
Salem, Salem District. ...Respondent in all cases
COMMON PRAYER: Writ Appeals filed under Clause 15 of Letters Patent
to set aside the common order of the learned Judge so far as against the
appellant is concerned, made in W.P.Nos.29780, 29853 and 29850 of 2018
dated 15.11.2018.
For Appellant: Mr.Harsha Prabhu
for Mr.A.P.Srinivas
For Respondent: Ms.G.Dhanamadhri
Government Advocate
https://www.mhc.tn.gov.in/judis/
W.A.Nos.637 to 639 of 2021
COMMON JUDGMENT
(Delivered by T.S.Sivagnanam,J)
These appeals have been filed by the writ petitioner, who is a
registered dealer under the provisions of the Tamil Nadu Value Added Tax
Act, 2006 ('TNVAT Act' for brevity) on the file of the respondent,
challenging the disposal of the writ petitions by the impugned order dated
15.11.2018, in which the appellant had challenged the assessment orders
dated 07.07.2018 for the years 2012-13, 2013-14 and 2014-15.
2. The main ground on which the appellant challenges the
assessment orders is by contending that there has been serious violation of
the principles of natural justice and the respondent, without taking note of
the objections filed by the appellant-dealer, had confirmed the proposal
made in the notices dated 11.06.2015 solely for the reason that the appellant
did not appear for personal hearing.
3. The learned Single Bench, while disposing of the writ petitions,
noted the fact that the appellant has filed their objections dated 03.07.2015
to the proposal made in the show cause notices dated 11.06.2015 and the
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W.A.Nos.637 to 639 of 2021
Court also noted that the proposal in the show cause notices was confirmed
only on the reason that the appellant did not appear in person in spite of
granting sufficient opportunity. The Court also noted that on a reading of the
assessment orders dated 07.07.2018, it is evident that the respondent has not
considered the objections filed and without rendering any findings on their
objections, has passed the assessment orders. Therefore, the Court remitted
the mater back to the Assessing Officer to redo the assessments.
4. The appellant is not aggrieved by any of the findings rendered
by the learned Single Bench, which are wholly in favour of the appellant,
nor the appellant is aggrieved by the order of remand. The appellant is only
aggrieved by the direction issued by the Court in paragraphs 9 (a) and (d) of
the impugned order, wherein the appellant has been directed to pay 15% of
the tax liability.
5. Ms.G.Dhanamadhri, learned Government Advocate would
argue that the writ petitions itself are not maintainable, since an effective
alternative remedy is available to the appellant under the provisions of the
TNVAT Act. Further, it is submitted that the writ petitions were second
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W.A.Nos.637 to 639 of 2021
round of litigation and earlier the appellant had approached this Court by
filing W.P.Nos.39288 to 39290 of 2015, challenging the pre-assessment
notices and this Court disposed of the writ petitions vide order dated
15.12.2015, by directing the appellant to submit their replies to the pre-
assessment notices. In spite of several opportunities granted to the appellant,
he did not appear before the Assessing Officer and therefore, the authority
was left with no other option except to complete the assessments and pass
the orders dated 07.07.2018.
6. As could be seen from the impugned order, the appellant had
filed the objections to the pre-assessment notices dated 11.06.2015 and the
objections have also been referred to in the assessment orders dated
07.07.2018. The respondent-Assessing Officer cannot be faulted for having
granted an opportunity of personal hearing. In fact, there are several
decisions of this Court which directs the Assessing Officer to afford an
opportunity of personal hearing, as several complicated factual decisions
could stand resolved. But, if the appellant did not appear for personal
hearing, in spite of an opportunity, it would be well open to the Assessing
Officer to proceed with the assessment. However, even that being so, he is
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W.A.Nos.637 to 639 of 2021
required to consider the objections filed by the dealer and then pass an order
on merits and cannot confirm the proposal made in the notices solely for the
reason that the dealer did not appear for personal hearing, though the dealer
had filed objections. Instead, the respondent-Assessing Officer had
committed such mistake while passing the assessment orders dated
07.07.2018.
7. Therefore, this Court is of the view that the learned Single
Bench is right in remitting the matter back to the Assessing Officer to redo
the assessment. However, we are not in agreement with the condition
imposed by the Court directing the appellant to pay 15% of the tax liability.
8. The learned Government Advocate would submit that the
observation made by this Court may be treated as a precedent, as in several
matters, the Court while exercising discretion under Article 226 of the
Constitution of India, imposes certain reasonable conditions.
9. The Revenue need not have any apprehension in this regard,
because only on the peculiar facts and circumstances of the case, we are
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W.A.Nos.637 to 639 of 2021
inclined to make such an observation and by no stretch of imagination, this
can be treated as a precedent.
10. Therefore, we are inclined to confirm that portion of the order
passed by the learned Single Bench remanding the matter to the Assessing
Officer to redo the assessments. However, we are inclined to interfere with
the direction issued by the learned Single Bench in directing the appellant to
pay 15% of the tax liability.
11. Accordingly, the Writ Appeals are allowed to the extent
indicated and the respondent shall redo the assessments as per the order
passed in the writ petitions, after affording one more opportunity of
personal hearing to the authorized representative of the appellant. No costs.
Consequently, connected miscellaneous petitions are closed.
(T.S.S.,J.) (R.N.M.,J.)
17.02.2021
Index: Yes/No
Internet:Yes/No
Speaking Judgment/Non speaking Judgment
hvk
https://www.mhc.tn.gov.in/judis/
W.A.Nos.637 to 639 of 2021
To
The Assistant Commissioner (CT),
Salem Rural Circle,
Salem, Salem District.
https://www.mhc.tn.gov.in/judis/
W.A.Nos.637 to 639 of 2021
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
hvk
W.A.Nos.637 to 639 of 2021
and
C.M.P.Nos.2830 & 2831 of 2021
17.02.2021
https://www.mhc.tn.gov.in/judis/
