M/S.Greens Land Restaurant vs The Assistant Commissioner (Ct)
2021 Latest Caselaw 4377 Mad

                                                                        W.P.(MD)Nos/528 and 529 of 2019


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 19.02.2021

                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                        W.P.(MD)Nos.528 and 529 of 2019
                                                     and
                                        W.M.P.(MD)Nos.435 & 436 of 2019

                      M/s.Greens Land Restaurant,
                      Rep. by its Partner S.Mohammed Musthapa AL Ameen,
                      No.100, Railway Feeder Road,
                      Tenkasi,
                      Tirunelveli District.                 ... Petitioner in both W.Ps.

                                                        -Vs-

                      The Assistant Commissioner (CT),
                      Tenkasi.                                    ... Respondent in both W.Ps.

Prayer in W.P.(MD)No.528 of 2019: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in TIN No.33185684920/2014-15 and quash the order dated 29.08.2017 as it is unlawful and in violation of the principles of natural justice and further direct the respondent to consider the objection in all perspective on its merits and pass appropriate order in accordance with law.

Prayer in W.P.(MD)No.529 of 2019: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, to

http://www.judis.nic.in W.P.(MD)Nos/528 and 529 of 2019

call for the records of the respondent in TIN No.33185684920/2015-16 and quash the order dated 29.08.2017 as it is unlawful and in violation of the principles of natural justice and further direct the respondent to consider the objection in all perspective on its merits and pass appropriate order in accordance with law.

                            For Petitioner     : Mr.A.Sathieesh Murugan
                                                 for Mr.R.D.Ganesan
                            For Respondent     : Mr.S.Dhayalan
                                                Government Advocate
                            (in both W.Ps)

                                                COMMON ORDER


                            Heard the learned counsel on either side.

2.Though the petitions are two in number, the petitioner in both the

petitions is one and the same. The petitioner is a restaurant. The

assessment years are 2014-15 and 2015-16. Their assessments were

finalised under Section 22(2) of the TNVAT Act. Subsequently, based on

the inspection by the Enforcement Wing Officials, pre-revision notices

were issued and adverse orders were passed against the petitioner. The

said orders were challenged in W.P.(MD)No.17429 of 2016 and the said

writ petition was allowed on 27.09.2016 and the respondent was directed

http://www.judis.nic.in W.P.(MD)Nos/528 and 529 of 2019

to pass orders afresh in accordance with law. Thereafter, the respondent

issued personal hearing notices dated 10.01.2017 and 06.06.2017. It is

stated that after receiving the notice of personal hearing, the dealer

requested 15 days time to produce the accounts and file their reply. But

the assessee did not do so. Therefore, the order dated 11.05.2016 was

once again confirmed by the impugned orders dated 29.08.2017.

Challenging the same, the Writ Petitions have been filed.

3.When the matter was taken up for admission, I had granted

interim orders on condition that the petitioner should pay 15% of the tax

demand. The said condition appears to have been complied with.

4.Today when the matter was taken up for final hearing, the

learned counsel for the petitioner drew my attention to the order dated

13.03.2006 passed by the Hon'ble Division Bench in Tax Case

(Revision) No.205 of 2006 (The State of Tamil Nadu Vs. Tvl.New

Kamaliya Hotel). In the said case, the assessing authority chose to arrive

at an estimate based on the one day sales of the assessee. Such an

approach was faulted by the Hon'ble Division Bench.

http://www.judis.nic.in W.P.(MD)Nos/528 and 529 of 2019

5.I am afraid that the said decision may not have any bearing on

the case on hand. In the present case, the respondents have taken into

account the sales figure for the entire month of November 2015. But

then, there are two circumstances in favour of the petitioner. This writ

petition has been filed by S.Mohammed Musthapa Al Ameen. It is stated

that he was only a silent partner earlier and that, there was a partnership

dispute and now only the petitioner has taken over the business. He is

now in-charge of the affairs of the business. Only when the respondent

took recovery measures, he became aware of the situation. The stand of

the petitioner is that the personal hearing notices were received by

another partner and due to his inaction, it is the petitioner who has to

bear the cross.

6.The other major ground is that the respondent has mechanically

confirmed the earlier order dated 11.05.2016. The said order was

specifically set aside in W.P.(MD)No.17429 of 2016 on 27.09.2016.

Therefore, an order, that was quashed by this Court, cannot be once again

given life. When the order dated 11.05.2016 was set aside, it was

incumbent on the part of the respondent, to have independently

considered the materials and arrived at a finding. A mere look at the

http://www.judis.nic.in W.P.(MD)Nos/528 and 529 of 2019

impugned order would show that except reproduction of the dealer's

earlier reply, there is virtually nothing else to indicate any application of

mind. Of-course, I can understand the position of the respondents.

When the petitioner has not bothered to file any accounts, the

respondents can only take recourse to such a crude method. At this stage,

the petitioner's counsel stated that he would pay balance 60 % of the tax

demanded and that he may be given one more opportunity to place the

records.

7.In view of the fact that an order that was quashed by this Court

has been mechanically resurrected and in view of the undertaking of the

petitioner to pay the balance 60% of the tax amount, the order impugned

in the writ petitions are quashed. The writ petitions are allowed. The

petitioner is given four weeks time from the date of receipt of a copy of

this order to pay the said balance amount. Even while making the balance

payment, the petitioner will also file an additional reply. The respondent

will give one more opportunity of personal hearing to the petitioner.

The petitioner has to necessarily place all the account books, so as to

assist the respondents to arrive at a correct finding. If the petitioner is

not co-operating with the enquiry, the respondent is free to make best

Judgment assessment.

http://www.judis.nic.in W.P.(MD)Nos/528 and 529 of 2019

G.R.SWAMINATHAN, J.

rmi

8.With this direction to the petitioner and liberty to the

respondents, these writ petitions are allowed. No costs. Consequently,

connected miscellaneous petitions are closed.

19.02.2021 Index : Yes/No Internet : Yes/No rmi

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 (CT), Tenkasi.

W.P.(MD)Nos.528 and 529 of 2019 and W.M.P.(MD)Nos.435 & 436 of 2019

http://www.judis.nic.in