Madras High Court
S.Vaithiyanathan vs The State Tax Officer on 29 June, 2021
W.P(MD)No.10712 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.06.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)No.10712 of 2021
S.Vaithiyanathan ... Petitioner
Vs.
The State Tax Officer,
(Previously known as Commercial Tax Officer),
Thiruppathur. ... Respondent
PRAYER: Petition filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Mandamus, directing
the respondent to consider the representation, dated 07.11.2018
and 26.04.2012 within stipulated period as may be fixed by this
Court.
For Petitioner : Mr.S.Karunakar
For Respondent : Mr.P.Thilak Kumar
Govt.Advocate
1/8
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W.P(MD)No.10712 of 2021
ORDER
This Writ Petition has been filed praying for issuance of a
Writ of Mandamus, to direct the respondent to consider the
representations of the petitioner, dated 07.11.2018 and 26.04.2012.
2. The case of the petitioner is that the petitioner is a works
contractor and was an assessee under the file of the respondent
holding TIN 33375503183, under the erstwhile Tamilnadu Value
Added Tax Act. The respondent had issued a Notice in
TIN33375503183/2014-15, dated 06.04.2016, under Section 22(4)
of the TNVAT Act stating that (i) He ought to have filed his return
through E-filing within prescribed time but failed to do so (ii)
Verification of the details of purchase as per dealer profile, he had
purchased goods for Rs.7,38,000/- and paid tax of Rs.36,900/-. In
the absence of return and other evidences, the respondent
proposed to estimate the sales suppression as Rs.8,69,438/- by
adding freight and gross profit along with equal addition and
penalty under Section 22(5) of the TNVAT Act.
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W.P(MD)No.10712 of 2021
3. The learned counsel appearing for the petitioner submits
that on receipt of Notice, dated 06.04.2016, the petitioner had filed
a detailed representation, dated 28.06.2016 with the copy of the
Form I-1 annual return, profit and loss account, copies of the
purchase bills etc., by clearly explaining the facts that he had
effected purchase of only centering sheet and adjustable span and
prop, which is only a capital goods for him and it is not purchased
for sales. It is used for contract work or given for rent and hence,
requested to drop the proposal. On filing the representation dated
28.06.2016 with records, the petitioner received further notice and
had appeared in person and explained the nature of the case and as
there was no sales of centering materials effected by him as
wrongly presumed and therefore, requested the respondent to drop
the proposal.
4. It is the further contention of the petitioner that even after
receipt of the representation with records on 28.06.2016 to prove
the fact that there was no sales effected by him, as presumed by
the respondent, to his shock and surprise, the respondent had
confirmed the proposal vide his proceedings in
TIN33375503183/2014-15, dated 24.10.2018, by arbitrarily stating
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W.P(MD)No.10712 of 2021
that “being a works contractor, he ought to have utilized those
goods for execution of his contract work during 2014-15. In the
absence of return and other evidences, the dealer is liable to be
assessed to the best of judgment”, which is bad in law. On receipt
of the order dated 24.10.2018, as there was a mistake apparent on
the face of the record, he had filed a representation, dated
07.11.2018, before the respondent by once again explaining the
fact that the material purchased by him was only capital goods
used while doing contract work. The goods purchased was
therefore used for own purpose or let out for rent and never used
for sales. The petitioner explained the fact that when the notice
dated 06.04.2016 was issued, he had filed a detailed reply with
records, dated 28.06.2016 and his predecessor officer had verified
all the records and accepted the contention and assured of
dropping the proposal. As the order has been now wrongly passed,
the petitioner had requested the respondent to reopen the
assessment under Section 84 of the TNVAT Act and pass a revised
order by rectifying the defect.
5. Adding further, the learned counsel for the petitioner
would submit that inspite of receiving the representation, dated
07.11.2018, as there was no response from the side of the
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W.P(MD)No.10712 of 2021
respondent, he was forced to file another detailed representation,
dated 14.10.2019, once again explaining the entire facts and also
the errors committed while passing the revision order, dated
24.10.2018, by pointing out that he had not followed the
guidelines / procedure for making best judgment assessment in
circular issued on the basis of the recommendation of the Justice
Sri Ramanujam Committee in Circular in Acts cell – VI /37801/99,
dated 25.08.1999, which is binding on the respondent and once
again requested the respondent to reopen the assessment, to
rectify the error apparent on the face of record under Section 84 of
the TNVAT Act. The respondent, being a statutory authority, is
expected to discharge statutory functions in accordance with
Section 84 of the TNVAT Act. Since the respondent did not
discharge his duty in accordance with the law, the petitioner had
repeatedly approached the respondent in person and requested to
consider his representation, dated 14.10.2019, filed under Section
84 of the TNVAT Act in accordance with law. The respondent till
date has not responded to it. Hence, the present Writ Petition.
6. I have heard the learned counsels appearing on either side
and perused the materials available on record.
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W.P(MD)No.10712 of 2021
7. Before adverting to the contentions raised by the learned
counsel appearing on either side, it is worthwhile to refer Section
84 of the Tamil Nadu Value Added Tax Act, which reads as under:-
“"Section 84 of the Tamil Nadu Value
Added Tax Act deals with power to rectify any
error apparent on the face of the record. Sub-
Section (1) states that the Assessing Authority
or an Appellate Authority or Revisional
Authority including the Tribunal may, at any
time within five years from the date of any
order passed by it, rectify any error apparent
on the face of the record.”
8. As per the power conferred under Section 84 of the
TNVAT Act, the Assessing Authority has the power to rectify any
error apparent on the face of the record. The said Section does not
state that it is only pertaining to arithmetical errors or clerical
errors. Though the provision states that it is a power for
rectification, in effect, the language employed in the provision
would confer a power on the Authority to review its decision, if
there is error apparent on the face of the record.
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W.P(MD)No.10712 of 2021
9. In the light of the above, without adverting to the merits of
the case, this Court directs the respondent to consider the
representation of the petitioner dated 07.11.2018, after affording
due opportunity of personal hearing to the petitioner, and to
dispose of the same on merits and in accordance with law, within a
period of four weeks from the date of receipt of a copy of this order.
10. With the above direction, this Writ Petition stands
disposed of. No costs.
29.06.2021
Index:Yes/No
Internet:Yes/No
MPK
Note:(i) In view of the present lock
down owing to COVID-19 pandemic, a
web copy of the order may be utilized for
official purposes, but, ensuring that the
copy of the order that is presented is the
correct copy, shall be the responsibility
of the advocate/litigant concerned.
To
The State Tax Officer,
(Previously known as Commercial Tax Officer),
Thiruppathur.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.10712 of 2021
J.NISHA BANU, J.
MPK
W.P(MD)No.10712 of 2021
29.06.2021
https://www.mhc.tn.gov.in/judis/
