Madras High Court
Sri Murugan Agencies vs The Commercial Tax Officer on 17 February, 2021
W.A.No.636 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.No.636 of 2021
and
C.M.P.No.2829 of 2021
Sri Murugan Agencies,
Rep. by its M.Murugaiyan (Proprietor),
No.6/92-A, South Street,
Nagapattinam - 611 111. ...Appellant
Vs
The Commercial Tax Officer,
Nagapattinam Assessment Circle,
Commercial Taxes Buildings,
Court Campus, Veliyapalayam,
Nagapattinam. ...Respondent
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent to set aside
the order passed in W.P.No.20869 of 2019 dated 19.07.2019.
For Appellant: Mr.K.Kulandaivelu
For Respondent: Ms.G.Dhanamadhri
Government Advocate
1/7
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W.A.No.636 of 2021
JUDGMENT
(Delivered by T.S.Sivagnanam,J)
This appeal, filed by the writ petitioner, is directed against the
order dated 19.07.2019 passed in W.P.No.20869 of 2019.
2. The writ petition was filed challenging a Show Cause Notice
dated 12.04.2018 issued by the respondent stating that on verification of
Form WW filed by the appellant for the year 2013-14, certain defects had
been noticed and that the appellant had not reported the purchase turnover
to the Government in their monthly return. The appellant was granted 15
days time to file their objections to the said notice dated 12.04.2018 along
with documentary evidences. The appellant submitted their objections on
16.05.2018 stating that the proposal made in the said notice dated
12.04.2018 was incorrect and referred to the decision in the case of
M/s.J.K.M. Graphics Solutions (P) Ltd. The objections were presented to
the respondent in person. As seen from the acknowledgment given by the
respondent in the office copy of the objections, which contained the
signature and seal of the respondent, the date of receipt was mentioned as
16.05.2018.
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W.A.No.636 of 2021
3. The appellant's grievance is that though the objections were
given by the appellant and received by the respondent on 16.05.2018, the
assessment order was passed, which is dated 11.05.2018, without taking
note of the factual position. This prompted the appellant to file the writ
petition before this Court.
4. The learned Single Bench opined that the appellant should avail
the alternate remedy of appeal provided under Section 51 of the Tamil Nadu
Value Added Tax Act, 2006 and assigned reasons and after referring to
certain decisions of the Hon'ble Supreme Court, dismissed the writ petition.
Aggrieved by such order, the appellant is before us by way of this appeal.
5. We have elaborately heard Mr.K.Kulandaivelu, learned counsel
for the appellant and Ms.G.Dhanamadhri, learned Government Advocate
appearing for the respondent.
6. So far as the exercise of jurisdiction of this Court under Article
226 of The Constitution of India, even in cases where alternate remedy is
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W.A.No.636 of 2021
provided, discretion is being exercised by this Court. This exercise of
discretion is to be done cautiously and the Courts imposed a self restraint
upon themselves while exercising their jurisdiction especially in matters
arising under a Taxation Statute. However, this is not an absolute bar and
there have been instances where Courts have exercised jurisdiction taking
note of the fact and circumstances of each case.
7. We are prompted to make the above observations on the ground
that the respondent has received the objections filed by the appellant on
16.05.2018. If, according to the respondent, he has already completed the
assessment and passed an order on 11.05.2018, the respondent could have
informed the appellant that already an order of assessment has been passed,
since the appellant did not file their objections to the notice dated
12.04.2018. However, the respondent did not inform the appellant, rather
received the objections and endorsed the receipt of the same on 16.05.2018.
Apart from that, in the assessment order dated 11.05.2018, the respondent
would admit that the appellant had received the notice dated 12.04.2018
sent by registered post on 18.04.2018. If that is so, then the appellant had
time to submit their objections till 03.05.2018. If the appellant had not
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W.A.No.636 of 2021
submitted their objections within the said time limit, then the respondent
could have recorded the same in the assessment order dated 11.05.2018.
Further, the defect, which is alleged against the appellant, is on account of
verification of the other end dealers namely Annexure II through the
Departmental Website. If such is the issue, it is necessary that the appellant
should be given an effective opportunity and the Department can also
exercise their discretion to departmentally verify the correctness of the
transactions.
8. Thus, considering the peculiar facts and circumstances of the
case, we are inclined to grant one more opportunity to the appellant to go
before the Assessing Officer and submit fresh objections, so as to enable the
respondent to redo the assessment in accordance with law.
9. In the light of the above, the Writ Appeal is allowed and the
matter is remanded to the respondent for a fresh consideration. The
appellant is directed to treat the assessment order dated 11.05.2018 as a
notice, submit their objections within 15 days from today and on receipt of
the objections, the respondent shall endeavour to make a departmental
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W.A.No.636 of 2021
verification and thereafter afford an opportunity of personal hearing to the
appellant and redo the assessment in accordance with law. No costs.
Consequently, connected miscellaneous petition is closed.
(T.S.S.,J.) (R.N.M.,J.)
17.02.2021
Index: Yes/No
Internet:Yes/No
Speaking Judgment/Non speaking Judgment
hvk
To
The Commercial Tax Officer,
Nagapattinam Assessment Circle,
Commercial Taxes Buildings,
Court Campus, Veliyapalayam,
Nagapattinam.
https://www.mhc.tn.gov.in/judis/
W.A.No.636 of 2021
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
hvk
W.A.No.636 of 2021
and
C.M.P.No.2829 of 2021
17.02.2021
https://www.mhc.tn.gov.in/judis/
