Madras High Court
M/S.Fe Nerve Building vs The Commercial Tax Officer-Ii on 4 March, 2021
1 W.P.(MD)Nos.6811 to 6814 OF 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)Nos.6811 to 6814 of 2018 and
W.M.P.(MD)Nos.6522 to 6525 of 2018
M/s.Fe Nerve Building,
Rep. by its Proprietor M.Balamurugan,
No.1, Madurai Road,
Kaliamman Koil New Street,
Thiruppathur, Sivagangai District. ... Petitioner
in all petitions
Vs.
The Commercial Tax Officer-II,
Commercial Tax Building,
Thanjavur. ... Respondent
in all petitions
Prayer in W.P.(MD)No.6811 of 2018 : Writ
petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, calling for records in TIN
33213825365/2011-12 dated 29.01.2018 and quash the same
as illegal and against the principles of natural justice.
Prayer in W.P.(MD)No.6812 of 2018 : Writ
petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, calling for records in TIN
33213825365/2012-13 dated 29.01.2018 and quash the same
as illegal and against the principles of natural justice.
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2 W.P.(MD)Nos.6811 to 6814 OF 2018
Prayer in W.P.(MD)No.6813 of 2018 : Writ
petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, calling for records in TIN
33213825365/2013-14 dated 29.01.2018 and quash the same
as illegal and against the principles of natural justice.
Prayer in W.P.(MD)No.6814 of 2018 : Writ
petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, calling for records in TIN
33213825365/2014-15 dated 29.01.2018 and quash the same
as illegal and against the principles of natural justice.
(in all W.Ps.)
For Petitioner : Mr.N.Sudalai Muthu,
for Mr.S.Karunakar.
For Respondents : Ms.J.Padmavathi Devi,
Special Government Pleader.
***
COMMON ORDER
Heard the learned counsel on either side.
2. Tvl. Fe Nerve Building has filed these four writ
petitions in respect of the assessment years 2011-12, 2012-13,
2013-14 and 2014-15. The petitioner is a manufacturer of pre
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engineered steel structure. The case of the petitioner is that
the petitioner is liable to pay tax at the rate of 4% or 5%. They
are remitting tax on that basis. However, pre-revision notice
came to be issued. The petitioner offered their reply. After
granting an opportunity of personal hearing, the impugned
orders were passed. The respondent chose to levy tax at the
rate of 12.5%/14.5%, on the strength of Letter No.Vat
Cell/763/2007/VCC33 dated 12.03.2007 and Circular
No.54/2014 in Ref.No.D3/34875/2014 dated 14.11.2014. In
the said circulars, the Commissioner of Commercial Taxes,
Chennai, had directed the assessment officers to levy tax at
the rate of 12.5%/14.5%. Based on the same, the impugned
orders have been passed. They are assailed in these writ
petitions.
3. Though the writ petitioner herein had taken a
specific ground that the commodities in question are declared
goods as specified in Section 14 of the CST Act 1956 which
should be assessed only as 5% and not as 14.5%, in the
counter affidavit this contention has not at all been dealt with.
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4. The rate of tax cannot be determined with
reference to the circulars issued by the administrative
authorities. The petitioner's counsel draws my attention to the
order dated 27.03.2014 in W.P.(MD)No.5866 of
2010(M/s.Veesons Energy Systems (P) Limited V. The
Commissioner of Commercial Taxes, Chennai and another). In
the said order, it was held as follows:-
“16. Therefore, from a conjoint reading
of the above judgments and the provisions, it is
clear that the first respondent had no powers to
issue any circular or clarification. Further
section 48 A was introduced with effect from
27.09.2011. Any order by the State Level
Authority for Clarification and Advance Ruling
under Section 48 A can only be made regarding
any clarification on rate of tax on an application
by a dealer. Even there, the first respondent has
no powers to individually or independently issue
any clarification on rate of tax. It is also clear
that the first respondent does not have any
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authority to issue circulars or clarifications on
any other matters other than rate of tax. The
first respondent cannot use the circulars or
clarifications to overcome the provisions of the
statute. Any interpretation which was not
intended by the legislature also cannot be
introduced by way of circulars or clarifications.
Any change in the statute can be brought in only
by way of amendment. The levy of tax must be
within the four corners of law and must not be
based on surmises and conjunctures. Any act
contrary to the provisions of the taxing statute
would be hit by Article 265 of the Constitution of
India. Therefore, the impugned circular issued
without authority is set aside. The petitioner is
directed to submit their objections within four
weeks from the date of receipt of a copy of this
order and the second respondent shall consider
the objections and pass orders independently
sticking on to the provisions of the Act. In the
result, the Writ Petition is allowed. No costs.“
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5. Respectfully following the aforesaid ratio, the
orders impugned in these writ petitions are quashed. The writ
petitions are allowed.
6. Even before commencing his argument, the learned
counsel appearing for the petitioner undertakes that the
petitioner will pay a sum of Rs.2,00,000/- covering the demand
set out in the writ petitions within a period of two weeks from
the date of receipt of a copy of this order. However, the
payment of this amount will be without prejudice to the
petitioner's contentions and they would abide by the final
orders to be passed by the respondent.
7. I make it clear that in respect of the defects set out
in the impugned orders, the respondent will have to pass
orders afresh in accordance with law. The respondent will
have to issue fresh notice to the petitioner herein and the
petitioner is at liberty to file their objections. If the respondent
is not satisfied with the explanation of the petitioner, after
affording an opportunity of personal hearing, orders afresh
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will be passed in accordance with law. No costs.
Consequently, connected miscellaneous petitions are closed.
04.03.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 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 Commercial Tax Officer-II,
Commercial Tax Building,
Thanjavur.
http://www.judis.nic.in
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)Nos.6811 to 6814 of 2018
04.03.2021
http://www.judis.nic.in
