Madras High Court
Tvl. R.Sankara Narayanan ... vs The Deputy State Officer – 2 on 28 April, 2022
WP (MD) Nos.4380 and 4381 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.04.2022
CORAM
THE HONOURABLE MR. JUSTICE C.SARAVANAN
Writ Petition (MD)Nos.4380 and 4381 of 2022
and
W.M.P.(MD)Nos.3694 and 3696 of 2022
Tvl. R.Sankara Narayanan Industries,
Rep. by its Proprietor,
R.Sankara Narayanan,
No.114, Opp. to RMTC Colony,
Mariammankovilpatti, Theni .. Petitioner in both the W.Ps.
Versus
The Deputy State Officer – 2,
Theni-1. .. Respondent in both the W.Ps.
Prayer in both the W.Ps.:- Petitions filed under Article 226 of the
Constitution of India praying for issuance of a Writ of Certiorari, to call for the
records on the file of the respondent in CST No.150430/2009-2010 and
2009-10 and 2010-2011, dated 08.02.2022, and quash the same as illegal,
without authority of Law and without jurisdiction as it is barred by limitation
as prescribed under Section 9(2) of the Central Sales Tax Act, 1956 read with
Section 27(1)(a) of the Tamil Nadu Value Added Tax Act, 2006.
For Petitioner : Mr.A.Chandrasekaran
(in all the W.Ps.)
For Respondent : Mr.M.Prakash
(in all the W.Ps.) Additional Government Pleader
https://www.mhc.tn.gov.in/judis
WP (MD) Nos.4380 and 4381 of 2022
COMMON ORDER
The petitioner has challenged the impugned assessment orders both
dated 08.02.2022 for the assessment years 2009-2010 and 2010-2011 as
detailed below:-
W.P. Petitioner Asst. Deemed Expiry Date of Date of
(MD)No. Year Completion of 1st Notice impugned
of Limitation order
Assessment
Year
4380/2022 Sankara 2009-10 30.06.2012 30.06.2018 14.07.2021 08.02.2022
Narayanan
Industries
4381/2022 Sankara 2010-11 30.06.2012 30.06.2018 14.07.2021 08.02.2022
Narayanan
Industries
2.The case of the petitioner is that they had filed periodical returns
under the provisions of Central Sales Tax Act, 1956 and the provisions of the
Tamil Nadu Value Added Tax Act, 2006 as applicable to the provisions of the
former Act. It is submitted that the assessment was deemed to have been
completed on 30.06.2012. It is therefore submitted that the impugned
proceedings, which preceded two notices, dated 14.07.2021, long after the
expiry of limitation i.e., on 30.06.2018 were without jurisdiction and therefore,
they are liable to be quashed.
https://www.mhc.tn.gov.in/judis
WP (MD) Nos.4380 and 4381 of 2022
3.The learned counsel for the petitioner relied on the following three
decisions of this Court:-
(i) M/s.Sisco Medicals Device Private Limited, Rep. by its Managing
Director, Vivek Bajaj vs. The Assistant Commissioner (CT),
Nandambakkam Assessment Circle, Chennai [W.A.Nos.1843 & 1844 of
2021, dated 04.08.2021]
(ii) Tvl.Pupa Lineraa, Rep. by its Partner, S.Pushpa Rajan vs. The
State Tax Officer, Karur-3 Division [W.P.(MD)No.14494 of 2021, dated
27.10.2021]
(iii) M/s.Adayar Bakery Private Limited, Rep. by its Director,
Chennai vs. The Assistant Commissioner (ST), Adayar Assessment Circle,
Chennai [W.P.Nos.3028, 3030 and 3031 of 2019, dated 09.11.2021]
4.Opposing the prayer, the learned Additional Government Pleader for
the respondent has relied on the decision of this Court, dated 30.03.2022, in
M/s.Parveeen Traders vs. The Assistant Commissioner (ST), Madurai,
[W.P.(MD)No.5713 of 2022], and sought for similar order may be passed by
remitting the cases back to the respondent by giving opportunity to the
petitioner to produce additional documents to substantiate that the petitioner
had indeed filed all the returns in time together with required documents for
completing the assessment.
https://www.mhc.tn.gov.in/judis
WP (MD) Nos.4380 and 4381 of 2022
5.I have considered the arguments advanced by the learned counsel for
the petitioner and the learned Additional Government Pleader for the
respondent.
6.Today, in a batch of Writ Petitions in W.P.(MD)No.5192 of 2022 etc.
batch, under somewhat similar circumstances, this Court has passed an order
remitting the cases back to the respondent to pass a speaking order within a
period of 60 days from the date of receipt a copy of that order. The operative
portion of the said order reads as under:-
''7.The question of limitation against the respondent department
from re-opening of the assessment would arise only where an assessee
had filed all the related documents at the time of filing of returns. If
the returns were filed along with the required documents, then, by
virtue of fiction incorporated in Section 22(2) of the Tamil Nadu
Valued Added Tax Act, 2006, the assessment is deemed to have been
completed on the date specified in the said Section. In these cases, it
is the specific case of the respondent that the petitioner had not filed
the documents, whereas, it is the specific case of the petitioner that
they have filed documents. If the documents have been filed, they
would be available with the respondent. In any event, the petitioner
will have a photocopy of the same.
8.Considering the above, I am inclined to remit the cases back
to the respondent to pass a speaking order within a period of 60 days
from the date of receipt of a copy of this order. The petitioner is
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WP (MD) Nos.4380 and 4381 of 2022
directed to produce original or photocopy of the relevant forms,
which were not filed along with the returns filed by them for the
respective assessment orders.
9.These Writ Petitions stand disposed of in terms of the above
observation. No costs. Consequently, connected Miscellaneous
Petitions are closed.''
7.In M/s.Adayar Bakery Private Limited, Rep. by its Director,
Chennai vs. The Assistant Commissioner (ST), Chennai, [W.P.Nos.3028,
3030 and 3031 of 2019, dated 09.11.2021], the specific case of the respondent
therein was that the notice could not be issued in time because the Department
was on appeal on the identical issue before the Division Bench in Tvl.Zaitoon
Multicuisine Family Restaurant vs. The Assistant Commissioner (ST),
Thiruvanmiyur Circle, Chennai [W.A.No.1444 of 2015] and after the writ
appeal was disposed, the proceedings were initiated.
8.In my view, the above said decision cannot be applied to the four
corners of the facts of the present cases. In the present cases, it is the specific
case of the respondent that the petitioner had not filed all the required
documents along with the returns. Therefore, the question of deemed
assessment and the limitation cannot be put against the respondent. If the
petitioner has requisite documents, they can produce the same. However, the
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WP (MD) Nos.4380 and 4381 of 2022
learned counsel petitioner is unable to confirm the same even today whether
they have required documents to bring a closure to the issue by re-examining
the same. If the petitioner has those documents, I would have remitted the
cases back to the respondent to pass a fresh order. The argument that Section
64(2) (b) of the Tamil Nadu Value Added Tax Act, 2006 also will come to the
rescue of the petitioner cannot be countenanced, as the question of deemed
assessment under Section 22(4) of the Tamil Nadu Value Added Tax Act,
2006 cannot be put against the Revenue, where no documents have been filed
along with the returns.
9.At this juncture, it is relevant to extract below Section 22(4) of the
Tamil Nadu Value Added Tax Act, 2006:-
''22(4) –If no return is submitted by the dealer for any period of
the year or if the return filed is incomplete or incorrect, or if not
accompanied with any of the documents prescribed or proof of
payment of tax, the assessing authority shall, after making such
enquiry as it may consider necessary, assess the dealer to the best of
its judgement, subject to such conditions as may be prescribed, after
the completion of that year:
Provided that before taking action under this sub-section, the
dealer shall be given a reasonable opportunity of being heard.''
10.Though the above said amendment to Section 22(4) of the Tamil
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WP (MD) Nos.4380 and 4381 of 2022
Nadu Value Added Tax Act, 2006 came into force on 19.06.2012, the
assessment in the present cases pertains to the assessment years 2009-2010
and 2010-2011. Therefore, I am of the view that it is of no specific importance
as prior to the above said date, every return had to be scrutinized and
assessment order had to be passed, but for the above said amendment, the
petitioner would have been liable to pay tax based on the best of judgment
assessment or under Section 25 of the Tamil Nadu Value Added Tax Act,
2006. I do not find any merit in the present Writ Petitions. Therefore, I am
inclined to dismiss these Writ Petitions. However, liberty is given to the
petitioner to file statutory appeal before the appellate Commissioner under the
provisions of the Tamil Nadu Value Added Tax Act, 2006 as made applicable
to assessments and appeals under the provisions of the Central Sales Tax Act,
1956.
11.These Writ Petitions stand dismissed with the above observation. No
costs. Consequently, connected Miscellaneous Petitions are closed.
Index : Yes/No 28.04.2022
smn2
To
The Deputy State Officer – 2,
Theni-1.
https://www.mhc.tn.gov.in/judis
WP (MD) Nos.4380 and 4381 of 2022
C.SARAVANAN, J.
smn2
Common order in
Writ Petition (MD)Nos.4380 and 4381 of 2022
28.04.2022
https://www.mhc.tn.gov.in/judis
