A.Sakthivel vs The State Of Tamil Nadu
2023 Latest Caselaw 3758 Mad

                                                                              W.A.No.1690 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 05.04.2023

                                                        CORAM

                                THE HONOURABLE MR.JUSTICE R.MAHADEVAN
                                                 AND
                             THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ

                                                  W.A. No.1690 of 2022

                       A.Sakthivel                                        ...Appellant

                                                              Vs.
                       1.The State of Tamil Nadu,
                         Rep. by its Secretary,
                         Commercial Taxes Department,
                         Fort. St.George, Chennai-600 009.

                       2.The State Tax Officer,
                         Harur Circle, Harur,
                         Dharmapuri District.

                       3.The Deputy Commissioner/ Appellate Authority,
                         Commercial Taxes, Salem.                      ...Respondents


                       PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying
                       to set aside the order dated 01.03.2022 in W.P.No.4206 of 2022 on the file
                       of this Court and allow the writ appeal.

                                          For Appellant       : Mr.J.Bharathi Raja

                                          For Respondents : Mr.M.Venkateswaran
                                                            Special Government Pleader

                       1/7

https://www.mhc.tn.gov.in/judis
                                                                                  W.A.No.1690 of 2022
                                                         JUDGMENT

(Judgment of the Court was made by MOHAMMED SHAFFIQ, J.)

The writ appeal has been filed challenging the order of the learned

Single Judge in W.P.No.4206 of 2022 dated 01.03.2022.

Brief facts:

2. The appellant is a dealer registered under the erstwhile Tamil

Nadu Value Added Tax Act, 2006 (hereinafter referred to as “TNVAT

Act”). During the Assessment Year 2013-14, the appellant had executed

Works Contracts for Tamil Nadu Slum Clearance Board, Salem Division.

3. It is submitted that, though under TNVAT Act, every dealer is

required to submit monthly returns, the appellant had failed to submit the

returns. According to the appellant, he had entrusted the task of filing the

returns with a Tax Practitioner, who had failed to submit the same,

pursuant to which, the 3rd Respondent issued a notice dated 09.11.2017

calling upon the appellant to furnish details of the work undertaken by

him, followed by another notice dated 11.01.2018. On enquiry, the

appellant was informed by the Tax Practitioner that he had inadvertently

not submitted the returns, therefore, the appellant requested the Tax

https://www.mhc.tn.gov.in/judis W.A.No.1690 of 2022 Practitioner to handle the assessment proceedings. Despite the above

instructions, the appellant was not duly represented in the assessment

proceedings, resultantly, the exparte order of assessment dated

24.09.2018 came to be passed under Section 22(4) of the TNVAT Act,

resulting in a tax liability of Rs.3,09,465/- and penalty of Rs.4,64,197/-,

totalling a sum of Rs.7,73,662/-.

4. It is further submitted by the appellant that by the time he got to

know about the fact that the impugned order of assessment had been

made, the appeal was barred by limitation. Immediately, he had filed a

rectification petition on 15.12.2021, but the same had been rejected vide

order 20.12.2021 on the ground that it was filed belatedly.

5. Subsequently, the appellant had filed the writ petition in

W.P.No.4206 of 2022 challenging the order of the assessment and the

learned Single Judge had dismissed the same on the ground that the writ

petition has been filed after three years from the date of order of

assessment and thus, refused to entertain the writ petition. Aggrieved by

the above order of learned Single Judge, the appellant had preferred the

present writ appeal.

https://www.mhc.tn.gov.in/judis W.A.No.1690 of 2022

6. On 21.07.2022, when the writ appeal was taken up for

consideration, this court has directed the appellant to remit a sum of

Rs.1,50,000/- within a period of two weeks, which has been duly

complied with by the appellant.

7. Challenging the order of the learned Single Judge, the learned

counsel for the appellant contended that the impugned order of

assessment suffers from error apparent on the face of record and without

jurisdiction inasmuch as the contractee viz., Tamil Nadu Slum Clearance

Board, Salem Division had deducted tax at source and once taxes have

been paid, levy of tax in the hands of the appellant in respect of the very

same transaction is impermissible. Secondly, it is contended that the

impugned order of assessment has been made under Section 22 (4) of the

TNVAT Act, however, the penalty was imposed invoking Section 27(3)

of the TNVAT Act, which is impermissible inasmuch penalty under

Section 27 (3) of the TNVAT Act would get attracted only in respect of an

assessment made under Section 27 (1) (a) of the TNVAT Act and

therefore, the impugned order falls foul of Article 265 of the Constitution

of India, as per which, no tax shall be levied or collected except by

authority of law. It is also submitted that the appellant had engaged a tax

https://www.mhc.tn.gov.in/judis W.A.No.1690 of 2022 practitioner, who had failed to submit the returns on time and represent

the appellant in assessment proceedings, despite the fact that the

appellant duly authorized the tax practitioner to file the appeal.

8. However, the learned counsel for the appellant submitted that it

would suffice, if the appellant is directed to deposit the balance dues

within a time frame to be stipulated by this court and on such remittance,

the appellant authority may be directed to take the appeal on file and

dispose of the same, on merits, to which the learned counsel for the

respondent did not have any serious objection.

9. In view of the above submission of the learned counsel on either

side, the appellant is directed to deposit the remaining sum after adjusting

the taxes deducted at source by the contractee, if supported by prescribed

form, within a period of six weeks from the date of receipt of a copy of

this order and on such payment, the appellate authority shall take the

appeal, if any, on record without raising any issue relating to limitation

aspect and dispose of the same on merits and in accordance with law after

affording due opportunity of hearing to the appellant. It is open to the

appellant to raise all questions/grounds that are available, to them before

https://www.mhc.tn.gov.in/judis W.A.No.1690 of 2022 the appellate authority. In the event of failure on the part of the appellant

in complying with the aforesaid direction, the order now passed shall

stand vacated automatically without further reference to this court.

10. Accordingly, the order of the learned Single Judge is modified

and the writ appeal stands disposed of. No costs. However, it is made

clear that this order is made on the basis of the peculiar facts of this case

and on the basis of consent by both parties, and hence, it shall not be

treated as precedent.

[R.M.D., J.] [M.S.Q., J.] 05.04.2023 Speaking (or) Non Speaking Order Index : Yes/ No Neutral Citation : Yes/ No mka/ shk

To

1.The Secretary, Commercial Taxes Department, Fort. St.George, Chennai-600 009.

2.The State Tax Officer, Harur Circle, Harur, Dharmapuri District.

3.The Deputy Commissioner/ Appellate Authority, Commercial Taxes, Salem.

https://www.mhc.tn.gov.in/judis W.A.No.1690 of 2022

R.MAHADEVAN, J.

AND MOHAMMED SHAFFIQ, J.

mka/shk

W.A.No.1690 of 2022

05.04.2023

https://www.mhc.tn.gov.in/judis