Madras High Court
M/S.Kaleesuwari Refinery ... vs The Assistant Commissioner ... on 8 July, 2021
W.P.No.12202 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.07.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.12202 of 2013
and
M.P.No.1 of 2013
M/s.Kaleesuwari Refinery Private Limited,
Rep., by its Director,
No.53, Rajasekaran Street,
Mylapore, Chennai-600 004. .. Petitioner
-vs-
The Assistant Commissioner (CT)(FAC),
Washermenpet II Assessment Circle,
Chennai-600 081. .. Respondent
Petition filed under Article 226 of the Constitution of India praying
for issuance of Writ of Certiorari to call for the records of the respondent in
his proceedings in TIN 33391280956/2012-13 and quash the proceedings
dated 08.04.2013 issued therein.
For Petitioner : Mr.R.L.Ramani,
Senior Counsel
assisted by
Mr.B.Raveendran
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W.P.No.12202 of 2013
For Respondent : Mr.V.Nanmaran,
Government Advocate
******
ORDER
The lis on hand is filed questioning the legal validity of the notice
dated 08.04.2013 issued for provisional assessment with reference to the
assessment year 2012-13.
2.The petitioner is engaged in the manufacture of edible oil and is
registered on the files of the respondent under the provisions of the Tamil
Nadu Valude Added Tax Act, 2006 (hereinafter referred to as "the TNVAT
Act").
3.The facts in detail deserve no adjudication in view of the fact that
the learned Senior Counsel appearing on behalf of the petitioner solicited
the attention of this Court with reference to the settled legal proposition
regarding passing of a provisional assessment order, after the last date of a
particular year. In the present case, the process of provisional assessment is
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W.P.No.12202 of 2013
undertaken by issuing the impugned notice in proceedings dated 08.04.2013
and the last date for the assessment year 2012-13 was 31.03.2013. Thus, the
notice itself is invalid and without jurisdiction.
4.A writ against a show cause notice is not entertainable in a routine
manner. A writ petition needs to be entertained only if, the notice is issued
by an incompetent authority or without jurisdiction or an allegation of
malafides is raised. In the present case, the impugned notice has been
allegedly issued by the respondent without any jurisdiction. Thus, the writ
is entertainable. The grounds raised in the present writ petition are no more
res integra, as the Hon'ble Division Bench of this Court in the case of
HMM Ltd. vs. Deputy Commercial Tax Officer, Chengalpattu reported in
[(1990) 79 STC 421, ruled as follows:-
“9.We therefore hold that the impugned order
made in TNGST No.180826/89-90 dated 28th April, 1990
is vitiated by errors of law apparent on the face of facts
and liable to be quashed. We also accept the contention
of the learned counsel for the petitioner and the ratio of
Mahendrakumar Ishwarlal and Company vs. Deputy
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W.P.No.12202 of 2013
Commercial Tax Officer [1971] 28 STC 551 (Mad.) that
it is not open to the Revenue to pass a provisional order
of assessment after the end of the assessment year.
Therefore, there is no point in directing the petitioners
to seek the statutory remedies available under the Act.
Accordingly, the writ petition is allowed and the
impugned order is quashed and there will be no order as
to costs.”
5.The legal proposition contemplated in the aforementioned judgment
was subsequently followed by the Hon'ble First Bench of this Court in the
case of M/s.Jothi Melters (India) Pvt. Ltd. vs. Commercial Tax Officer
[W.A.Nos.1412 & 1413 of 2009, dated 14.10.2009]. Paragraph 4 of the said
judgment reads as follows:-
“4.Mr.R.L.Ramani, learned Senior Counsel
appearing for the appellant has drawn our attention to
the judgment of a Division Bench of this Court in State
of Tamil Nadu vs. Wander Limited reported in (1990) 79
STC 421 (Mad.) which in turn, in paragraph 9 refers to
another Division Bench judgment in Mahendrakumar
Ishwarlal and Company vs. Deputy Commercial Tax
Officer reported in (1971) 28 STC 551 (Mad.) to the
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W.P.No.12202 of 2013
effect that it is not open to the Revenue to pass a
provisional order of assessment after the end of the
assessment year.”
6.The fact remains that the proposal for provisional assessment was
undertaken by the respondent with reference to the assessment year 2012-13
and the last date for the said assessment year was 31.03.2013 and
admittedly, the impugned notice was issued on 08.04.2013 and thus, the
legal principles, as settled in the aforementioned judgments, would be
squarely applicable in respect of the writ petition on hand.
7.Accordingly, the impugned notice passed by the respondent in
proceedings dated 08.04.2013, is quashed and the writ petition stands
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
08.07.2021
Index : Yes
Speaking Order
abr
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W.P.No.12202 of 2013
S.M.SUBRAMANIAM, J.
(abr)
To
The Assistant Commissioner (CT)(FAC),
Washermenpet II Assessment Circle,
Chennai-600 081.
W.P.No.12202 of 2013
08.07.2021
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