Tvl Space Crafts, v. The Deputy Commercial Tax

In the High Court of Judicature at Madras Dated: 04.01.2017 Coram The Honourable Mr.JUSTICE RAJIV SHAKDHER Writ Petition No.96 of 2017 & WMP No.106 of 2017 Tvl.Space Crafts, represented by its Proprietor, Hanifa M. Mohammed .... Petitioner Vs.

1. The Deputy Commercial Tax Officer, Anna Salai Assessment Circle, Chennai - 66.

2. Assistant Commissioner (CT), Nolambur Assessment Circle, Villivakkam, Chennai - 49.

.... Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of mandamus directing the respondents to dispose of the petitioner's representation dated 28.06.2016 before initiating any recovery action pursuant to notice dated 14.12.2016 in Rc.No.861/2016/A3. For Petitioner : Mr.Adithya Reddy For Respondents: Mr.K.Venkatesh

O R D E R

1. Issue notice. Mr.K.Venkatesh, accepts notice on behalf of respondents.

2. With the consent of counsels for parties, the Writ Petition is taken up for hearing and final disposal.

3. The limited grievance of the petitioner is that respondent No.2, without disposing of its representation dated 28.06.2016, has initiated recovery proceedings vide notice dated 14.12.2016.

3.1. To be noted, the petitioner's representation dated 28.06.2016 pertains to Assessment Years (A.Ys) 2013-2014 and 2014-2015.

3.2. The petitioner, as a matter of fact, on an earlier occasion, had approached this Court by way of Writ Petitions being: W.P.Nos.31366 and 31667 of 2016. The said Writ Petitions were disposed of via order dated 08.09.2016, whereby, the following operative directions were issued:

".....4. Accordingly, without going into the merits of the contentions raised by the petitioner in the said applications dated 26.08.2016, there will be a direction to the respondent to consider the petitioner's applications u/s.84 of the TNVAT Act, 2006, for the Assessment Years 2013-14 and 2014-15 and pass orders on merits and in accordance with law after affording an opportunity of personal hearing to the petitioner within a period of three weeks from the date of receipt of a copy of this order. Till orders are passed on the said petitions/applications, no coercive action shall be initiated against the petitioner for recovery of tax and penalty as demanded pursuant to the notice dated 26.08.2016. In other words, the notice dated 26.08.2016 shall be kept in abeyance till then......"

4. The impugned recovery notice, however, pertains to AYs 2008-09 to 2012-13.

4.1. The petitioner asserts that the issues arising in the AYs 2008-09 to 2012-13 and in AYs 2013-14 and 2014-15, which are subject matter of representation dated 28.06.2016, are identical.

The petitioner, however, submits that, if, representation dated 28.06.2016 is dealt with, then, perhaps, no occasion would arise for imposition of tax at the rate, at which, it is sought to be imposed.

5. Pertinently, it is the petitioner's case that he is a trader in furniture. The petitioner states that he has exercised the option available under Section 3(4) of the Tamil Nadu Value Added Tax Act, 2006 ( in short the 2006 Act) and is, therefore, liable to pay tax, only at the rate of 0.5%.

5.1. Furthermore, in the alternative, the petitioner states that, even if, he is held to be a manufacturer, he would be liable to pay tax at the rate of 5% under Part B of the 1st Schedule to the 2006 Act and not, at the rate of 14.5%, as indicated in the impugned order.

5.2. In sum, these are the contentions, which the petitioner

has raised in the representation dated 28.06.2016.

6. As is evident on a perusal of the Writ Petition, the prayer has been made in line with these broad assertions, which have been captured above.

7. I have asked Mr.Venkatesh, as to whether, the individual, who had passed the impugned order, was the same, who had passed the order, when the petitioner had approached this Court via W.P.Nos.31366 and 31667 of 2016. Learned counsel, upon obtaining instructions, has confirmed that the two orders were passed by different persons.

8. Having regard to the aforesaid, the captioned Writ Petition is disposed of with the following directions: i) Respondent No.1, will dispose of the representation dated 28.06.2016;

ii) Pending the disposal of the representation, no coercive measures will be taken against the petitioner, pursuant to the order dated 14.12.2016, and for a period of two weeks thereafter. iii) The needful will be done by respondent No.1, with due expedition, though, not later than six (6) weeks from the date of receipt of a copy of the order.

9. Resultantly, the connected Miscellaneous Petition is closed. 10. However, there will be no order as to costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar sl To

1. The Deputy Commercial Tax Officer, Anna Salai Assessment Circle, Chennai - 66.

2. Assistant Commissioner (CT), Nolambur Assessment Circle, Villivakkam, Chennai - 49.

+1cc to Mr.Adithya Reddy, Advocate, S.R.No.689 +1cc to the Spl.Government Pleader, S.R.No.1166 lrs(CO) md(30/01/2017) Writ Petition No.96 of 2017 & WMP No.106 of 2017