Madras High Court
Skt Textile Mills vs The Commercial Tax Officer on 22 June, 2021
W.P.Nos.2963 to 2967 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.2963 to 2967 of 2014
and M.P.Nos.1 to 1 of 2014
SKT Textile Mills,
182, Chettypalayam Road,
Palladam Post, Tirupur District,
Rep. By its Authorised Signatory,
Mr.P.M.Nachimuthoo. .. Petitioner
in all W.Ps.
Vs.
The Commercial Tax Officer,
Palladam Circle,
Palladam,
Tirupur District. .. Respondent
in all W.Ps.
Prayer in W.P.No.2963/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorari, calling for the records
relating to the proceedings of the Respondent in TIN No.33576243183/2007-
08 dated 23.10.2013 and quash the same.
Prayer in W.P.No.2964/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorari, calling for the records
relating to the proceedings of the Respondent in TIN No.33576243183/2008-
09 dated 25.10.2013 and quash the same.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
Prayer in W.P.No.2965/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorari, calling for the records
relating to the proceedings of the Respondent in TIN No.33576243183/2009-
10 dated 25.10.2013 and quash the same.
Prayer in W.P.No.2966/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorari, calling for the records
relating to the proceedings of the Respondent in TIN No.33576243183/2010-
11 dated 25.10.2013 and quash the same.
Prayer in W.P.No.2967/2014: Writ Petition filed under Article 226 of the
Consitution of India, to issue a Writ of Certiorari, calling for the records
relating to the proceedings of the Respondent in TIN No.33576243183/2011-
12 dated 04.11.2013 and quash the same.
(In all W.Ps.)
For Petitioner : Mr.M.Hariharan
For Respondent : Mr.V.Nanmaran
(Government Advocate)
COMMON ORDER
The orders of revision of assessment passed by the respondent in
proceedings dated 23.10.2013, 25.10.2013, 25.10.2013, 25.10.2013 and
04.11.2013 are under challenge in the present Writ Petitions respectively. The
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
petitioner is a registered dealer and the Writ Petitions are filed mainly on the
ground that the opportunity as contemplated under the provisions of the Act
is not provided before passing the final orders of revision of assessment and
therefore, the orders impugned are in violation of the principles of natural
justice. The details regarding the facts deserves no further adjudication in
view of the fact that the petitioner raised the sole ground that the orders
impugned are to be set aside on the ground that the respondent passed the
same unilaterally, without providing opportunity to the petitioner to submit
their documents and defence statements.
2.The learned counsel appearing for the petitioner made a submission
that pursuant to the notice issued on 12.08.2013, the petitioner submitted its
reply on 17.09.2013. Further, they have requested in the said reply to grant
two months time to file the certificate of payment. However, the respondent
has neither accepted nor rejected the request seeking time and unilaterally
proceeded and passed the impugned orders of revision of assessment. Thus,
the respondent has violated the principles of natural justice and the petitioner
was denied of their opportunity to produce the certificate of payments and
other details. The learned counsel for the petitioner insisted that it is a fit case
to remand the matter back. In support of the said contention, he cited the
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
judgment of this Court dated 28.07.2010 passed in W.P.No.19393 of 2006 in
the case of Esjyapee Impex (P) Ltd., Vs. The Commercial Tax Officer and
the relevant paragraph is extracted hereunder:
“11.In such circumstances, by applying the law laid
down by the Hon'ble Division Bench which was passed
after taking note of the clarification issued by the
respondent Department, it has to be held that the impugned
order to that extent, disallowing the exemption for an
amount of Rs.40,47,000/- has to be held to be vitiated. The
Division Bench has held that when a request for extension
is either granted or rejected, intimation there on should be
given to the assessee then and there. Therefore, the
explanation sought to be given by the respondent in the
counter affidavit that the order of assessment was passed
much after the period is no ground to justify their action.
Thus, the order of the Division Bench fully supports the
case of the petitioner and they are entitled to succeed.”
The Kerala High Court, in the case of M/s.Euro Business System Vs. State
of Kerala and another, reported in www.livelaw.in, held as follows:
“5.Having perused Ext.P4 the typed copy of the
assessment order and also the manuscript copy of the same
and considering the fact that Ext.P4 was despatched from
the office of the 2nd respondent only after 64 days from the
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
date of order shown in Ext.P4, that too, after receipt of
Ext.P3 reply filed by the assessee, we find that Ext.P3 reply
filed by the assessee was well within the knowledge of the
2nd respondent before the order was issued for
communication to the assessee. Non consideration of
Ext.P3 reply filed by the assessee therefore amounts to
violation of the principles of natural justice. Accordingly,
Ext.P4 is set aside. The 2nd respondent is directed to pass
an order afresh by looking into Ext.P3 reply given by the
assessee on 22.10.2020. The said exercise shall be
completed within eight weeks from the date of receipt of
copy of this judgment. We make it clear that we have not
expressed any opinion on the merits of the matter.”
Relying the said judgments, the learned counsel for the petitioner reiterated
that opportunity as contemplated under the provisions are not adhered to and
thus, the Writ Petitions are to be allowed.
3.The learned Government Advocate appearing on behalf of the
respondent made a submission that the respondent provided an opportunity
and the petitioner had not availed the same and therefore, now the petitioner
cannot blame the respondent for not passing any orders regarding the request
made seeking time. He pleaded for rejection of the Writ Petitions.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
4.Perusal of the counter affidavit filed by the respondent, reveals that,
the records and account books produced by the Inspecting Officials were
verified on 28.05.2012 and 29.05.2012. After exhaustive verification of those
records and hearing the explanations of the petitioner, the respondent
identified the lapses. The provisions, as applicable and the judgments relied
upon were referred to and the petitioner was informed about the same.
Thereafter, an opportunity of hearing was provided to the petitioner and
orders were passed.
5.It is contended by the respondent that the petitioner has taken about
two years from the date of inspection. However, during the said period, the
petitioner failed to seek any records for perusal and with reference to the
lapses admitted by him. Thus, the contention of the petitioner that the orders
are passed without granting time or without even communicating the refusal
to grant time, is incorrect and false. The petitioner received the notice. The
petitioner admits the receipt of notice, but failed to file his objections. Thus,
the opportunity afforded by the respondent was not availed by the petitioner
and without utilising the opportunities, the Writ Petitions are filed and thus,
the same are liable to be dismissed.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
6.Perusal of the orders impugned, the same would reveal that the merits
are considered and findings are made available. However, the petitioner has
raised the question. Their request to grant two months time to file certificate
of payment in letter dated 17.09.2013 was not disposed of. In other words, no
order of rejection or acceptance was passed. Thus, the petitioner was deprived
of his opportunity to file the documents.
7.This Court is of the considered opinion that the assessees may work
out their remedy in a calculated manner, some times to prolong and protract
the issues. However, the authorities competent are expected to be cautious in
the matter of following of the procedures contemplated. Evasion of Tax is a
common phenomenon in our nation. Thus, the competent authorities while
dealing with any issues are bound to be careful, more specifically in the
matter of following the procedures as contemplated in the statute and the
rules.
8.The impugned orders are passed in the year 2013 and the Writ
Petitions are filed in the year 2014. The officials competent are expected to
follow the procedures contemplated under the statute and rules scrupulously.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
The procedural violations, if any, committed would cause unnecessary delay
and further, provide cause for further disputes on such technical grounds.
The present Writ Petitions are classic case, where the issues are pending for
more than six years. Thus, the authorities competent, on initiation of any
proceedings under the Act, must ensure that the procedures are followed
scrupulously in each case to avoid the procedural lapses.
9.The writ petitioner has raised the ground of violation of principles of
natural justice. However, the nature of violations are to be ascertained and the
Courts, if found that the procedural violations affecting the rights of the
parties are violated, then the case is to be remanded back to the authority for
the purpose of fresh consideration and to follow the procedures as
contemplated under the rules in force. Undoubtedly, the appellate authority is
the final fact finding authority and therefore, exhausting the appellate remedy
is imminent.
10.The appellate authorities being a final fact finding authority, their
adjudication with reference to the original records are of paramount
importance and would provide greater assistance to the High Court, while
exercising the power of judicial review under Article 226 of the Constitution
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
of India. Thus, exhausting the appellate remedy is the rule and entertaining a
Writ Petition is an exception. In the event of an imminent urgency or threat or
damage which cannot be compensated or in certain circumstances warranting
an urgent interference, then alone the Writ Petitions are entertainable by
dispensing with the appellate remedy and in all other circumstances, the
correctness or otherwise of the original authority by the appellate authority by
adjudicating the mixed question of fact and law is mandatory and therefore,
the High Court is expected to be cautious while dispensing with the appellate
authority as contemplated under the statute.
11.In the present case, undoubtedly, the assessees are adopting the
delay tactics. Unfortunately, the system also supports such litigants in
disposal of the matters as such matters are kept pending for years together.
Ultimately, such delay causes injury to the revenue for the State and sufferers
would be the public at large in the society. Thus, the authorities are bound to
be careful while dealing with such matters. The respondent is also expected
to pursue the matters before the Courts vigilantly so as to get disposal as early
as possible in such matters where fresh considerations are required on
account of certain technical and procedural irregularities.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
12.In view of the fact that the respondent has not disposed of the
request made by the petitioner to grant two months time to file certificate of
payment, the matter is to be remanded back for fresh adjudication by
following the procedures. Accordingly, this Court is inclined to pass the
following orders:
(i) The impugned orders passed by the respondent in proceeding TIN
No.33576243183/2007-08 dated 23.10.2013, TIN No.33576243183/2008-09
dated 25.10.2013, TIN No.33576243183/2009-10 dated 25.10.2013, TIN
No.33576243183/2010-11 dated 25.10.2013 and TIN
No.33576243183/2011-12 dated 04.11.2013 are quashed.
(ii) These matters are remanded back to the respondent for fresh
consideration and for passing final orders by affording opportunity to the writ
petitioner.
(iii) The petitioner is directed to file certificate of payment, defence
statements or any other documents before the respondent within a period of
two weeks from the date of receipt of a copy of this order. In the event of not
filing any such document by the petitioner, the respondent is at liberty to
proceed with the consideration and pass final orders.
(iv) The respondent is directed to pass final orders on merits and in
accordance with law within a period of eight weeks from the date of receipt
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
of a copy of this order and provide personal hearing if any such request is
made by the petitioner.
13.Accordingly, the Writ Petitions stand allowed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
22.06.2021
gsa
Index : Yes
Speaking Order
To
The Commercial Tax Officer,
Palladam Circle,
Palladam,
Tirupur District.
_____
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2963 to 2967 of 2014
S.M.SUBRAMANIAM, J.
gsa
W.P.Nos.2963 to 2967 of 2014
22.06.2021
_____
https://www.mhc.tn.gov.in/judis/
