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Madras High CourtWP/1149/2016disposed of

M/S. V.M.Traders, v. The Assistant Commissioner

2016-01-27Honourable Mr Justice R. Mahadevan4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.01.2016

CORAM:

THE HONOURABLE MR.JUSTICE R.MAHADEVAN WP.No.1149 of 2016 M/s.V.M.Traders represented by its Proprietrix, D.Kalpana ... Petitioner Vs 1.The Assistant Commissioner (CT) Avarampalayam Assessment Circle, Coimbatore, Coimbatore District.

2.The Commercial Tax Officer (Enforcement) Group II, Tiruppur, Tiruppur District.

... Respondents Prayer:- This Writ Petition is filed to issue a Writ of Mandamus to direct the first respondent to return an amount of Rs.67,31,630/- forcibly collected vide Cheques bearing Nos.000131 dated 22.01.2016 for Rs.20,00,000/-, 000132 dated 15.02.2016 for Rs.20,00,000/-, 000133 dated 11.03.2016 for Rs.17,31,630 and 000134 dated 25.03.2016 for Rs.10,00,000/- drawn on K.V.Bank, Avinashi Road Branch, Coimbatore favouring first respondent from the petitioner at the time of inspection on 5.1.2016 by the officials of the second respondent as per the representation made by the petitioner dated 6.1.2016. For Petitioner : Mrs.R.Hemalatha For Respondents : Mr.S.Kanmani Annamalai, Additional Government Pleader

O R D E R

By consent, this Writ Petition is taken up for final disposal.

2. The petitioner has filed this Writ Petition, seeking a Mandamus, directing the first respondent to refund an amount of Rs.67,31,630/- forcibly collected vide Cheques

bearing Nos.000131 dated 22.01.2016 for Rs.20,00,000/-, 000132 dated 15.02.2016 for Rs.20,00,000/-, 000133 dated 11.03.2016 for Rs.17,31,630/- and 000134 dated 25.03.2016 for Rs.10,00,000/- drawn on K.V.Bank, Avinashi Road Branch, Coimbatore in favour of the first respondent at the time of inspection on 5.1.2016 by the officials of the second respondent, as per the representation made by the petitioner dated 6.1.2016.

3. According to the petitioner, they are the dealer in Ferrous and Non-Ferrous Scraps and an assessee on the file of the first respondent. On 05.01.2016, the second Respondent along with his officials made a surprise inspection in the business premises of the Petitioner and conducted an audit in terms of Section 65 of the Tamil Nadu Value Added Tax Act, 2006, during the course of which, the officials found out certain defects relating to reversal of ITC on the purchase invoices, for the assessment years 2014-15 and 2015-16 to the tune of Rs.67,31,630/- and forcibly collected the said amount by way of four cheques drawn on K.V.Bank, Avinashi Road Branch, Coimbatore, the details of which are as follows: Cheque No. & Date Amount (Rs.) 000131 / 22.01.2016 Rs.20,00,000/- 000132 / 15.02.2016 Rs.20,00,000/- 000133 / 11.03.2016 Rs.

17,31,630/- 000134 / 25.03.2016 Rs.10,00,000/- Total Rs.67,31,630/- Thereafter, the petitioner made a representation dated 06.01.2016 to the first respondent, requesting to refund the said amount and the same was not considered so far. Hence, the petitioner is before this Court.

4. The learned counsel for the Petitioner contended that the second respondent has no jurisdiction to collect any payment towards tax without even any order of assessment or demand thereof by the first respondent. Further, the learned counsel for the petitioner contended that when the second respondent is not the assessing authority, the collection of tax by way of cheques in advance without the assessment order or demand, is illegal and hence, prayed for return of the cheques in question.

5. The learned Additional Government Pleader for the Respondents, on instructions, fairly submitted that without making an order of assessment or demand, the cheques in question were collected from the petitioner. However, the

same are not cleared so far. He further submitted that there is no question of refund, as wrongly claimed by the petitioner in their representation dated 6.1.2016.

6. I have considered the submissions made on either side and perused the materials available on record.

7. The issue involved in this Writ Petition is squarely covered by various orders of this Court, viz. (i) order dated 5.11.1993 in WP.No.16700 of 2003, (ii) order dated 9.4.2009 in WP.4034 of 2009, (iii) order dated 10.9.2009 in WP.29341 of 2005 and (iv) order dated 25.01.2011 in WP.No.212 of 2011, wherein, in similar circumstances, this Court ordered for return of the cheque.

8. Admittedly, in the case on hand, at the time of inspection, four cheques have been collected by the second respondent Officials, for the alleged tax due, without following the formalities prescribed under law and even without making an order of assessment or demand by the first respondent, after affording due opportunity to the Petitioner.

9. In my considered opinion, the second respondent has no jurisdiction, at the time of inspection, to demand or collect cheques towards tax due in advance, without a proper assessment or demand and also no power to levy any tax or quantify, without even calling for the books of accounts or without even verifying the returns and the books of the petitioner. Hence, it goes without saying that the action of the second respondent Officials in collecting the cheques towards alleged tax due, without an order of assessment or demand is illegal and accordingly, a direction has to be necessarily issued to the first respondent to return the cheques in question.

10. In view of the above said reasons and following the earlier orders of this court as stated above, the first respondent is directed to return the cheques bearing Nos.000131 dated 22.01.2016 for Rs.20,00,000/-, 000132 dated 15.02.2016 for Rs.20,00,000/-, 000133 dated 11.03.2016 for Rs.17,31,630 and 000134 dated 25.03.2016 for Rs.10,00,000/- drawn on K.V.Bank, Avinashi Road Branch, Coimbatore to the Petitioner, within a period of two weeks from the date of receipt of a copy of this order. However, it is made clear that the said direction for return of the cheques in question does not mean that it is not open to the respondents Department to assess the Petitioner to tax afresh on the materials detected during the course of inspection, after following the procedures contemplated under law.

11. With the above direction, this Writ Petition is disposed of. No costs.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar rk To:

1.The Assistant Commissioner (CT) Avarampalayam Assessment Circle, Coimbatore, Coimbatore District.

2.The Commercial Tax Officer (Enforcement) Group II, Tiruppur, Tiruppur District.

+1cc to Mrs.R.Hemalatha, Advocate, S.R.No.4578 +1cc to the Government Pleader, S.R.No.4947 W.P.No.1149 of 2016 NM(CO) CA(25/02/2016)