Sighamani Sivakumar vs Commercial Tax Officer
2025 Latest Caselaw 1477 Mad

Citation : 2025 Latest Caselaw 1477 Mad
Judgement Date : 3 January, 2025

Madras High Court

Sighamani Sivakumar vs Commercial Tax Officer on 3 January, 2025

Author: Mohammed Shaffiq

Bench: Mohammed Shaffiq

                                                                             W.P. No.39074 of 2024

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 03.01.2025

                                                     CORAM

                         THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ

                                           W.P. No.39074 of 2024
                                                    and
                                      W.M.P.Nos.42326 and 42327 of 2024


                     Sighamani Sivakumar,
                     Proprietor of Shree Vinayaga Trading Company,
                     188/1, Thadagam Road, Sivaji Colony,
                     Coimbatore, Tamil Nadu 641 025.
                                                                             ..Petitioner

                                                        Vs.

                     Commercial Tax Officer,
                     Velandipalayam,
                     Coimbatore.                                           .. Respondent


                     PRAYER: Writ Petition filed under Article 226 of the Constitution of
                     India, praying to issue a Writ of Certiorarified Mandamus, to call for the
                     records on the file of the respondent leading to the issuance of impugned
                     order dated 11.09.2023 vide GSTIN:33AZAPS3191B2ZO/2022-23 and
                     quash the same and consequently direct the respondents to re-adjudicate
                     the show cause notice after giving an opportunity of personal hearing and
                     shall pass a fresh speaking order in accordance with law.




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                                                                                    W.P. No.39074 of 2024

                                        For Petitioner     : Mr.A.G.Sathyanarayana

                                        For Respondent     : Mrs.Vasanthamala
                                                             Government Advocate

                                                             ORDER

The present writ petition has been filed challenging the impugned

order passed by the respondent in GSTIN:33AZAPS3191B2ZO/2022-23

dated 11.09.2023, passed by the respondent on the premise that the same

is made in violation of principles of natural justice.

2. It is submitted by the learned counsel for the petitioner that the

petitioner is engaged in the business of wholesale trade of waste and

scrap of precious metal and is registered under the GST Act. During the

relevant period of 2022-23, the petitioner had filed the returns and paid

appropriate taxes. However, on verification of returns it was found that

the petitioner had availed Input Tax Credit in respect of supplies made /

received from a non existing / fictitious entity viz., M.M.Traders.

3. It is submitted by the learned Counsel for the petitioner that an

intimation in Form DRC 01A was issued on 12.07.2023, followed by a

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notice in DRC01 dated 01.08.2023. An opportunity of personal hearing

was also granted to the petitioner on 08.08.2023. However, the

petitioner neither filed any reply nor avail the opportunity of personal

hearing. Hence the impugned order came to be passed. Aggrieved by the

impugned order, the petitioner had filed an appeal along with 10% pre-

deposit, which was however rejected on the ground of being barred by

limitation. It is submitted by the learned counsel for the petitioner that

neither the show cause notice nor the impugned order of assessment has

been served on the petitioner by tender or sending it by RPAD, instead it

had been uploaded in the “Additional Notices” tab in the GST Portal,

thereby, the petitioner was unaware of the initiated proceedings and was

thus unable to participate in the adjudication proceedings.

4. The learned counsel for the petitioner would then place reliance

upon the recent judgment of this Court in the case of

M/s.K.Balakrishnan, Balu Cables vs. O/o. the Assistant Commissioner

of GST & Central Excise in W.P.(MD)No.11924 of 2024 dated

10.06.2024, to submit that this court has remanded the matter back in

similar circumstances subject to payment of 25% of the disputed taxes. It

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was further submitted that the petitioner is ready and willing to pay 25%

of the disputed tax and that they may be granted one final opportunity

before the adjudicating authority to put forth their objections to the

proposal. It is also submitted that subsequent to the passing of the

impugned order, the petitioner had filed an appeal along with 10% pre-

deposit and would request that the same may be adjusted towards 25% of

the disputed tax, to which, the learned Government Advocate appearing

for the respondent does not have any serious objection.

5. By consent of both parties, the writ petition stands disposed of

on the following terms:

a) The impugned order dated 11.09.2023 is set aside.

b) The petitioner shall deposit 25% of the disputed taxes as

admitted by the learned counsel for the petitioner and the respondent,

within a period of four weeks from the date of receipt of a copy of this

order.

c) If any amount has been recovered or paid out of the disputed

taxes, including by way of pre-deposit in appeal, the same would be

reduced/adjusted, from/towards the 25% of disputed taxes directed to be

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paid. The assessing authority shall then intimate the balance amount out

of 25 % of disputed taxes to be paid, if any, within a period of one week

from the date of receipt of a copy of this order. The petitioner shall

deposit such remaining sum within a period of three weeks from such

intimation.

d) The entire exercise of verification of payment, if any, intimation

of the balance sums, if any, to be paid for compliance with the direction

of payment of 25% of the disputed taxes, after deducting the sums

already paid and payment by the petitioner of the balance amount, if any,

on intimation in compliance of the above direction, shall be completed

within a period of four weeks from the date of receipt of copy of this

order.

e) Failure to comply with the above condition viz., payment of

25% of disputed taxes within the stipulated period i.e., four weeks from

the date of receipt of a copy of this order shall result in restoration of the

impugned order.

f) If there is any recovery by way of attachment of Bank account or

garnishee proceedings, the same shall be lifted /withdrawn on complying

with the above condition viz., payment of 25 % of the disputed taxes.

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g) On complying with the above condition, the impugned order of

assessment shall be treated as show cause notice and the petitioner shall

submit its objections within a period of four (4) weeks from the date of

receipt of a copy of this order along with supporting documents/material.

If any such objections are filed, the same shall be considered by the

respondent and orders shall be passed in accordance with law after

affording a reasonable opportunity of hearing to the petitioner. It is made

clear that if the above conditions viz., 25% of disputed taxes is not

complied or objections are not filed within the stipulated period, four

weeks respectively from the date of receipt of a copy of this order, the

impugned order of assessment shall stand restored.