Madras High Court
Tvl.Shanthi Metal Corporation vs The Assistant Commissioner ... on 26 July, 2021
W.P.Nos.35301 & 35302 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.35301 & 35302 of 2013
and
M.P.Nos.2 & 2 of 2013
Tvl.Shanthi Metal Corporation,
Rep., by Partner, K.Shanmugam,
No.270, Mint Street, Park Town,
Chennai-03. .. Petitioner in both W.Ps.
-vs-
The Assistant Commissioner (CT)(FAC),
Park Town II Assessment Circle,
No.191, N.S.C.Bose Road,
Wavoo Complex, 5th Floor,
Chennai-01. .. Respondent in both W.Ps.
Petitions 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
TIN 33740400731/2009-10 and TIN 33740400731/2010-11 dated
15.10.2013 and the consequential proceedings in Letter TIN
33740400731/2009-10 and TIN 33740400731/2010-11 dated 22.11.2013
and quash the same.
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W.P.Nos.35301 & 35302 of 2013
For Petitioner : Mr.M.Hariharan
(In both W.Ps.)
For Respondent : Mr.V.Nanmaran,
(In both W.Ps.) Government Advocate
******
COMMON ORDER
The petitioner is an assessee on the file of the respondent under the
provisions of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter
referred to as “the TNVAT Act”).
2.The petitioner filed their monthly returns for the assessment years
2009-10 and 2010-11 indicating the purchases and sales made by them as
per the provisions of the TNVAT Act and claimed input tax credit for the tax
paid by them at the time of purchase. The sales invoices furnished by the
selling dealers indicate that they are registered dealers under the TNVAT
Act and the payment by the petitioner was made by cheque.
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W.P.Nos.35301 & 35302 of 2013
3.The grievance of the petitioner in nutshell is that the licence was
cancelled with retrospective effect and further, the licence of the second
dealer was also cancelled and such a retrospective cancellation of licences is
bad in law. In order to substantiate the grounds, the learned counsel for the
petitioner relied on the judgment of the Hon'ble Division Bench of this Court
in the case of Assistant Commissioner (CT), Broadway Assessment Circle
vs. Bhairav Trading Company reported in (2016) 96 VST 315 (Madras).
The learned counsel for the petitioner relied on paragraphs 20 and 22 of the
above said judgment, which read as follows:-
“20. We have already considered, what the
Hon'ble Apex Court in Suresh Trading Company's case
, has held. Revenue has not placed any contrary
judgments, nor pleaded that the judgements, stated
supra, are inappropriate to the facts on hand. In the
light of the above, all the writ appeals dealing with
reversal of input credit, are dismissed. However, there
shall be no order as to cost. Consequently, the
connected civil miscellaneous petitions are closed.
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W.P.Nos.35301 & 35302 of 2013
22. Order impugned before the writ court was
cancellation of the Registration Certificate of
M/s.Vijayshree Metals, Chennai/respondent, with
retrospective effect. Placing reliance on the decision of
this court in Jinsasan Distributors vs. Commercial Tax
Officer (CT), Chintadripet Assessment Circle, Chennai,
reported in 2013 59 VST 256 (Mad) and by observing
that the said decision is squarely applicable to the facts
to W.A.No.753/2016, the writ court, has set aside the
order dated 12.01.2015 of the Assessing Officer,
cancelling the Registration Certificate of the seller, with
retrospective effect, with a further direction to the
Assessing Officer, to activate the Registration
Certificate, within one week from the date of receipt of
a copy of the above said order.”
4.This Court is of the considered opinion that the Hon'ble Division
Bench in paragraph 22, placing reliance on the decision in the case of
Jinsasan Distributors vs. Commercial Tax Officer (CT), Chintadripet
Assessment Circle, Chennai reported in (2013) 59 VST 256 (Madras), and
by observing that the said decision is squarely applicable to the facts to
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W.P.Nos.35301 & 35302 of 2013
W.A.No.753 of 2016, held that the Writ Court, has set aside the order
passed by the Assessing Officer, cancelling the Registration Certificate of the
seller with retrospective effect. The Hon'ble Division Bench in clear terms
held that the decision is applicable to the facts of the case before it.
5.As far as the present writ petition is concerned, though the learned
counsel for the petitioner made a submission that the impugned orders
passed as well as the facts are almost akin to that of the above decision of
the Hon'ble Division, this Court is of the opinion that such an adjudication of
facts are to be undertaken by the appellate authority for the purpose of
extending the benefit of the order passed by the Hon'ble Division Bench.
6.The principles laid down by the Hon'ble Division Bench are to be
scrupulously followed. However, complete adjudication of facts and its
applicability with reference to the principles laid down are of paramount
importance for the purpose of rendering complete justice to the parties to the
lis. Such a factual adjudication requires verification and scrutinisation or
original records, documents and evidences. The exercise is to be done by the
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W.P.Nos.35301 & 35302 of 2013
appellate authority in the present case, as the learned counsel for the
petitioner reiterated that the original authority has failed to consider these
aspects and moreover, the judgment of the Hon'ble Division Bench was
delivered subsequently after passing of the impugned orders and therefore,
the original authority had no occasion to consider the said principles. Under
these circumstances, in the interest of justice, it would be appropriate that
the petitioner must be given an opportunity to adjudicate the facts and
circumstances as well as to place the judgment of the Hon'ble Division
Bench before the appellate authority concerned for the purpose of redressal
of their grievances. These being the principles to be followed, this Court is
of the considered opinion that adjudication of facts, application of principles
laid down shall be done by the appellate authority by following the
procedures contemplated and by affording opportunity to the petitioner. The
petitioner is permitted to file appeal to the jurisdictional appellate authority
within a period of six weeks from the date of receipt of a copy of this order
in a prescribed format and by complying with the provisions of the TNVAT
Act along with the documents as well as the judgment relied upon and in the
event of filing any such appeal, the appellate authority is directed to consider
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W.P.Nos.35301 & 35302 of 2013
the same, adjudicate the issues on merits and in accordance with law by
affording opportunity to the petitioner and dispose of the appeal as
expeditiously as possible preferably within a period of three months from the
date of receiving the appeal.
With the above directions, these writ petitions stand disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
26.07.2021
Index : Yes
Speaking Order
abr
To
The Assistant Commissioner (CT)(FAC),
Park Town II Assessment Circle,
No.191, N.S.C.Bose Road,
Wavoo Complex, 5th Floor,
Chennai-01.
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W.P.Nos.35301 & 35302 of 2013
S.M.SUBRAMANIAM, J.
(abr)
W.P.Nos.35301 & 35302 of 2013
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W.P.Nos.35301 & 35302 of 2013
26.07.2021
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