Madras High Court
M/S.Soma Enterprise Limited vs The Assistant Commissioner (Ct) on 9 July, 2021
W.P. Nos.1675 & 1676 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.Nos.1675 & 1676 of 2014
& M.P.Nos.1 & 1 of 2014
M/s.Soma Enterprise Limited,
Rep. By its Manager, Mrs.Sri Devi
2, Pillayar Koil Street,
Chennai 600 106. ..Petitioner in
both W.Ps.
Vs.
The Assistant Commissioner (CT),
Vadapalani I Assessment Circle,
No.1, Greams Road,
Chennai 600 006. ..Respondent in
both W.Ps.
Prayer in W.P.No.1675/2014: Writ Petition filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorari, calling for the records on
the file of the respondent in TIN 33421464706/2012-13 dated 20.12.2013
and quash the impugned proceedings dated 20.12.2013.
Prayer in W.P.No.1676/2014: Writ Petition filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorari, calling for the records on
https://www.mhc.tn.gov.in/judis/
W.P. Nos.1675 & 1676 of 2014
the file of the respondent herein in his proceedings TIN 33421464706/2012-
13 dated 13.01.2014 and quash the impugned proceedings dated 13.01.2014
and further direct the respondent to consider the petition filed under Section
84 of the Tamil Nadu Value Added Tax Act, 2006 afresh.
(In both W.Ps.)
For Petitioner : Mr.R.Kumar
For Respondent : Mr.V.Nanmaran
(Government Advocate)
COMMON ORDER
The assessment order passed by the respondent in proceedings
dated 20.12.2013, for the Assessment Year 2012-13 and the proceedings
dated 13.01.2014, are under challenge in these Writ Petitions respectively.
The petitioner-Company is a registered dealer under the provisions of the
Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as, 'the
TNVAT Act') and an assessee on the file of the respondent. The petitioner is
a works and contractor and awarded a contract for construction of pillar
with pile foundation and construction of elevated viaduct for rail track
between Koyambedu and Ashok Nagar. The petitioner being a works
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W.P. Nos.1675 & 1676 of 2014
contractor, is liable for assessment under Section 5 of the Act. The petitioner
reported their turnover by adding gross profit and arrived deemed sale value
and paid the tax. The petitioner reported the turnover in form I monthly
return and filed the returns through e-filing.
2.The grievances of the writ petitioner is that the respondent has
violated Section 22 (4) proviso clause of the TNVAT Act. The said provision
contemplates 'opportunity of being heard'. However, while issuing notice
dated 28.10.2013, the respondent has not afforded any personal hearing and
in the assessment order dated 20.12.2013, impugned in this Writ Petition, it
was wrongly observed that personal hearing was granted. The respondent
has not provided any such opportunity of personal hearing to the writ
petitioner and thus, the principles of natural justice has been violated.
Further, without calling for the books of accounts, the respondent assessed
the disposal of assets in other State and raised an arbitrary demand. On
receipt of the order, the petitioner filed original TDS Certificates and made a
representation that the claim of input tax credit was wrongly mentioned and
requested to give credit of the input tax claimed. The petitioner filed a
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W.P. Nos.1675 & 1676 of 2014
petition dated 13.02.2014 under Section 84 of the TNVAT Act, requesting to
rectify the error, enclosing supportive documents. The respondent, without
considering the documents, rejected the said petition vide proceedings TIN
33421464706/2012-13 dated 13.01.2014, on the same day of filing of the
petition and communicated to the employee of the petitioner.
3.The learned counsel for the petitioner, relied on the judgment of
the Hon'ble Division Bench of this Court in the case of V.Selladurai Vs.
Chief Commissioner of Income Tax (OSD), reported in [2008] 168
Taxman, 111 (Madras) and the relevant paragraph No.6 is extracted
hereunder:
“6.Though learned counsel appearing for the
appellant raised several contentions before us, but only
one is sufficient to allow the writ appeal. The main
contention is that the order, which is impugned in the writ
petition, has been passed in violation of the principles of
natural justice. Section 263 of the Income-tax Act
provides for personal hearing. As already noted, the
notice was received by the son-in-law of the appellant,
who contacted the appellant in Singapore, who in turn
requested him to get one month's time for filing detailed
objections. The son-in-law of the appellant sent a petition
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W.P. Nos.1675 & 1676 of 2014
on 20.03.2006, requesting one months' time for filing
objections. Thereafter, the objections came to be filed on
27.03.2006. According to the appellant, his son-in-law
was literally forced to file objections on 27.03.2006, and
thereafter the impugned order came to be passed by the
first respondent. It is not disputed by learned standing
counsel appearing for the revenue that no personal
hearing was given to the appellant or to his
representative. In fact, no date was fixed for hearing and
the first respondent went on to pass orders without
granting any opportunity of personal hearing to the
appellant.”
4.Further, in the case of Esjyapee Impex (P) Ltd., Vs.
Commercial Tax Officer, Sowcarpet I, reported in [2011] 42 VST 61
(Mad), this Court held that the personal hearing, as contemplated, is the
mandatory requirement to be followed, before passing an order of
assessment.
5.The respondent is unable to establish that an opportunity of
personal hearing was provided to the writ petitioner before passing the
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W.P. Nos.1675 & 1676 of 2014
impugned assessment order. Therefore, this Court is inclined to remand the
matter back to the respondent for fresh consideration and passing of the
orders.
6.Accordingly, the impugned assessment orders, passed by the
respondent in proceedings TIN 33421464706/2012-13 dated 20.12.2013
and TIN 33421464706/2012-13 dated 13.01.2014 are quashed and the
matter is remanded back to the respondent for fresh consideration, by
affording an opportunity of personal hearing to the writ petitioner. In this
regard, the respondent is directed to communicate the date and time of
personal hearing to the writ petitioner and the petitioner, without seeking
any adjournment, shall appear before the authority competent and submit
their objections, explanations, judgments relied on, documents, etc. On
receipt of the objections, the respondent is directed to consider the materials
available on record and the pleadings made during the personal hearing and
thereafter, pass order on merits and in accordance with law, within a period
of three months thereafter.
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W.P. Nos.1675 & 1676 of 2014
With this direction, both the Writ Petitions stand allowed. No
costs. Consequently, connected Miscellaneous Petitions are closed.
09.07.2021
gsa
Index : Yes
Speaking Order : Yes
Note: Registry is directed to handover
the original impugned orders to
the learned counsel on record.
To
The Assistant Commissioner (CT),
Vadapalani I Assessment Circle,
No.1, Greams Road,
Chennai 600 006.
https://www.mhc.tn.gov.in/judis/
W.P. Nos.1675 & 1676 of 2014
S.M.SUBRAMANIAM, J.
gsa
W.P.Nos.1675 & 1676 of 2014
09.07.2021
https://www.mhc.tn.gov.in/judis/
