Madras High Court
Tvl.Shri Alagappa Distributor vs The Assistant Commissioner (St) on 18 February, 2021
W.P.(MD)No.11309 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.11309 of 2019
and
W.M.P.(MD)Nos.8628 & 8629 of 2019
Tvl.Shri Alagappa Distributor,
Represented by Proprietor Mr.R.Saravanan,
Door No.25, Gandhi Nagar,
Chinnandan Kovil Road,
Karur District. ... Petitioner
-Vs-
The Assistant Commissioner (ST)
Karur West Circle,
Karur. ... Respondent
Prayer: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned proceedings of the respondent for the
assessment year 2017-18 vide proceeding No. TIN No.
33343785766/2017-18, dated 06.03.2018 and TIN No.
33343785766/2013-14 to 2016-17, dated 05.04.2019 quash the same and
to direct the respondent to re-do the assessment without influence of the
proposal of the Enforcement Authority, after giving adequate opportunity
to the petitioner.
1/6
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W.P.(MD)No.11309 of 2019
For Petitioner : M.Raja Karthikyean
For Respondent : Mr.S.Dhayalan
Government Advocate
ORDER
Heard the learned counsel on either side.
2.The petitioner is a dealer registered with the respondent. The
assessment years pertain to 2017-18. The petitioner's business premises
were inspected and based on the same, notice was issued on 19.01.2018.
The petitioner gave their reply. Not satisfied with the same, the order set
out in the notice was confirmed as such. The same is assailed in this
writ petition.
3.The learned counsel appearing for the petitioner points out that if
according to the assessing authority, the returns filed by the petitioner
was incorrect or incomplete, then, the procedures set out in Section 25 of
the TNVAT Act ought to have been followed.
4.Section 25 of the TNVAT Act, reads as follows:-
“25.Procedure to be followed in assessment
of certain cases. (1) If no return is submitted by
the dealer under Section 21 within the prescribed
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W.P.(MD)No.11309 of 2019
period, or if the return submitted by him appears
to the assessing authority to be incomplete or
incorrect, the assessing authority may, after
making such enquiry as it considers necessary,
determine the tax payable by the dealer to the best
of its Judgment:
Provided that, before taking action under
this sub-section on the ground that the return
submitted by the dealer is incomplete or incorrect,
the dealer shall be given a reasonable opportunity
of proving the correctness or completeness of the
return submitted by him.”
5.In the case on hand, the respondent has not invoked Section 25
of the TNVAT Act. Instead what has been invoked is Section 22(4) of the
TNVAT Act and penalty has also been levied under Section 22(5) of the
Act.
6.Section 22(4) of the TNVAT Act reads as follows:-
“22.Deemed Assessment and procedure to be followed by
the assessing authority:-
4.If no return is submitted by the dealer for any period of
the year or if the return filed is incomplete or incorrect, or if not
accompanied with any of the documents prescribed or proof of
payments of tax, the assessing authority shall, after making such
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W.P.(MD)No.11309 of 2019
enquiries as it may consider necessary, assess the dealer to the
best of its Judgment, subject to such conditions as may be
prescribed, after the completion of that year.
Provided that before taking action under this sub-section,
the dealer shall be given a reasonable opportunity of being
heard.”
7.A mere reading of the said provision would indicate that the said
provision will come into play only after the expiry of the concerned
assessment year. The said provision namely Section 22(4) of the Act
cannot be invoked during the middle of the assessment year. Therefore,
there is a jurisdictional error committed by the respondent. On this sole
ground, the order impugned in this writ petition is quashed. The matter
is remitted to the file of the respondent to pass orders afresh in
accordance with law. The Writ Petition is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
18.02.2021
Index : Yes/No
Internet : Yes/No
rmi
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W.P.(MD)No.11309 of 2019
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 (ST)
Karur West Circle,
Karur.
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W.P.(MD)No.11309 of 2019
G.R.SWAMINATHAN, J.
rmi
W.P.(MD)No.11309 of 2019
18/02/2021
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