Madras High Court
J.Tezoram vs The Assistant Commissioner (Ct) on 25 January, 2021
W.A.No.1146 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MS.JUSTICE R.N.MANJULA
Orders Reserved On Orders Pronounced On
08.01.2021 25.01.2021
W.A.No.1146 of 2020
and
C.M.P.No.14068 of 2020
J.Tezoram .. Appellant
-vs-
1.The Assistant Commissioner (CT),
(F.A.C.), N.S.C., Bose Road Assessment Circle,
Elephant Gate Bridge Road,
Chennai-600 003.
2.The Branch Manager,
Syndicate Bank,
George Town Branch,
Chennai-600 001. .. Respondents
Appeal under Clause 15 of the Letters Patent to set aside the order
dated 08.10.2020 made in W.P.No.172 of 2020.
1/11
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W.A.No.1146 of 2020
For Appellant : Mr.K.M.Malarmannan
For Respondents : R1 – Mr.Md.Shaffiq,
Special Government Pleader (Taxes)
******
JUDGMENT
This appeal filed by the appellant/writ petitioner is directed against
the order dated 08.10.2020, passed in W.P.No.172 of 2020.
2.Heard Mr.K.M.Malarmannan, learned counsel for the appellant/writ
petitioner and Mr.Md. Shaffiq, learned Special Government Pleader for the
first respondent/Department.
3.The appellant filed the said writ petition challenging the order of
assessment dated 10.09.2015, passed under the provisions of the Tamil
Nadu Value Added Tax Act, 2006, for the assessment year 2014-15.
4.The appellant's case is that he is not the Proprietor of M/s.Rajaram
Lamp House and his father, Mr.Jodharam, was running the said business in
Shop No.5, Kasi Chetty Street, Sowcarpet, Chennai-600 079.
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W.A.No.1146 of 2020
5.The appellant would state that the place of business was inspected
by the Officials of the Enforcement Wing on 15.10.2014, and certain defects
were pointed out and the appellant's father was directed to pay a sum of
Rs.3,45,850/- towards tax in respect of the stock held by him in the shop
during the inspection.
6.It is the further case of the appellant that his father, due to ill-health,
had closed down the business and left for Rajasthan during the end of 2015.
The appellant also had gone to his native place and he returned to Chennai
during September, 2019 and on his return, found that his bank account,
maintained with the Syndicate Bank, George Town Branch, Chennai, was
freezed by the first respondent/Department.
7.The appellant would state that he was not served with any notice
before passing the assessment order dated 10.09.2015, and the same is in
violation of the principles of natural justice. Further, the appellant would
state that the Department cannot proceed against him, as it is his father, who
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W.A.No.1146 of 2020
was running the business and he had closed down the business in the year
2015 and before that, he had cleared the arrears of tax and therefore, the
impugned assessment order has to be quashed.
8.The first respondent, viz., the Assessing Officer, in their counter
affidavit, filed in the writ petition, has extensively set out the factual matrix
to show that the appellant was involved in the said business and was present
at the time of inspection and the pre-assessment notice dated 11.06.2015,
was served on the dealer on 19.06.2015, but no objections were filed and
therefore, final order of assessment was passed on 10.09.2015.
9.The stand taken by the appellant that the business was closed down
by his father was disputed and the Department would state that no such
intimation was given to the Department about the closure of the business.
10.The Department would further state that the appellant was carrying
on the business and therefore, he is liable to clear the arrears of tax and
penalty. Further, demand notices were served as early as on 14.12.2017 and
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W.A.No.1146 of 2020
18.12.2017, and the stand taken by the appellant in the writ petition is
wholly unsustainable. Further, the appellant, having been involved in the
business along with his father, he is jointly and severally liable to pay the
dues payable by his father and he cannot escape by contending that he has
got nothing to do with the business.
11.Taking note of the submissions made on either side, the learned
Single Bench, with a view to ascertain the veracity or otherwise of the stand
taken by the appellant, had summoned records from the Department. The
compilation dated 08.09.2020, which was filed in the writ petition, contains
the copy of the statement recorded at the time of inspection on 20.10.2014.
The statement showed that the appellant as well as his father were in the
premises when the inspection was conducted. The compilation also
contains acknowledgement of the receipt of the pre-assessment notice dated
11.06.2015, which was received by an individual, who has signed and
affixed the seal of the said dealer.
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W.A.No.1146 of 2020
12.The Writ Court also noted that the order of assessment dated
10.09.2015, which was impugned in the writ petition, has been returned
with a postal endorsement “returned”. The Writ Court, further, found that
the order of assessment was served to two different addresses of which, one
was returned with a postal endorsement “refused” and the second was
returned with the postal endorsement “left”.
13.Thus, taking note of the fact that the order of assessment was
refused to be received, the learned Writ Court rightly held that the service of
the notice was complete. Since the appellant had insisted that the business
was not functioning, the Writ Court had directed the Revenue to make a
visit to the business premises and file a report. Pursuant to such direction,
the Assessing Officer, viz., the first respondent had made a visit to the
business premises and filed a report through e-mail dated 07.10.2020,
annexing photographs, which showed that the entity was functioning and
carrying on business in the same address. Therefore, the learned Writ Court
held that there is no jurisdiction whatsoever to entertain the writ petition, as
the delay between 2015 and the date of passing the order in the writ petition
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W.A.No.1146 of 2020
remained unexplained. That apart, the learned Writ Court found that the
explanation, given by the appellant with regard to the delay, was factually
incorrect. With the above reasoning, the writ petition was dismissed.
14.Before us, the learned counsel for the appellant reiterated the stand
taken before the learned Writ Court and submitted that the appellant cannot
be proceeded with. As noted by the learned Writ Court, the pre-assessment
notice was received, though it is not clear as to who has signed the notice.
Nevertheless, the seal of the dealer was affixed in the acknowledgement,
which finds place in the compilation filed before the learned Writ Court.
That apart, the order of assessment, which was impugned in the writ
petition, was sent to two addresses and in respect of one of the addresses,
the order of assessment was returned with the endorsement “refused”, which
would mean that the order of assessment has been served in accordance with
law and the Department cannot be faulted. That apart, due to the insistence
of the appellant contending that the business was not carried on any longer
ever since 2015, the learned Writ Court issued direction to the Assessing
Officer to inspect the business premises and file a report. This direction
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W.A.No.1146 of 2020
was complied with by the Assessing Officer and an inspection was
conducted and a report dated 07.10.2020, was filed before the learned Writ
Court duly supported by photographs. The report clearly showed that the
appellant was carrying on business in the very same premises. Therefore,
the stand taken by the appellant that he has nothing to do with the business
was found to be a false submission. Even before us, the delay from the year
2015 has not been explained.
15.Furthermore, the Department was not intimated about the alleged
closure of business by the appellant's father. The Registration Certificate,
granted to the dealer, continued to remain valid and part payment was made
by the dealer, which was given credit to in the assessment order. As could
be seen from the computation given in the assessment order dated
10.09.2015, as against the total tax demand of Rs.10,54,509/-, a sum of
Rs.1,53,943/- has been paid and the balance amount payable is
Rs.9,00,566/-. The penalty was calculated at Rs.15,81,763/- at 150% of the
tax due of which, a sum of Rs.2,30,915/- was paid and the balance payable
is Rs.13,50,848/-. Therefore, the case, as projected by the appellant, having
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W.A.No.1146 of 2020
been found to be false by the learned Writ Court, after directing an
inspection to be conducted, we find there is no justifiable ground made out
by the appellant to interfere with the order passed by the learned Writ Court.
16.During the course of hearing, the Court suggested to the learned
counsel for the appellant that if the appellant is ready and willing to clear
the entire tax arrear, the Court may be inclined to grant opportunity to the
appellant to go before the Assessing Officer and file their objections.
However, the learned counsel for the appellant had no instructions on this
regard and continued to reiterate the submission made before the learned
Writ Court and the grounds raised in the writ petition.
17.As pointed out earlier, the pre-assessment notice was received by
the dealer, the order of assessment was communicated to the dealer in the
manner known to law. Further, the stand taken by the dealer that they are
not carrying on business was found to be false, as could be seen from the
inspection report submitted by the Assessing Officer pursuant to the interim
direction granted by the learned Writ Court. Thus, we find there are
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W.A.No.1146 of 2020
absolutely no ground made out by the appellant to interfere with the order
passed in the writ petition dated 08.10.2020.
18.For the above reasons, the writ appeal fails and is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
(T.S.S., J.) (R.N.M., J.)
25.01.2021
Index: Yes/ No
Speaking Order : Yes/ No
abr
To
The Assistant Commissioner (CT),
(F.A.C.), N.S.C., Bose Road Assessment Circle,
Elephant Gate Bridge Road,
Chennai-600 003.
https://www.mhc.tn.gov.in/judis/
W.A.No.1146 of 2020
T.S.Sivagnanam, J.
and
R.N.Manjula, J.
(abr)
W.A.No.1146 of 2020
25.01.2021
https://www.mhc.tn.gov.in/judis/
