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Madras High CourtWP/7846/2017disposed of

M/S.T.Jayaprakash, Contractor, v. Commercial Tax Officer

2017-07-06Honourable Mr Justice T. S. Sivagnanam3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.07.2017

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.Nos.7846 and 7847 of 2017 and W.M.P.Nos.8572 and 8573 of 2017 M/s.T.Jayaprakash, Contractor rep.by its Authorised Signatory No.116-A, Majeed Koil Street, Pennagaram Street, Dharmapuri District-636 802.

... Petitioner in both W.Ps.

Vs The Commercial Tax Officer, Palacode Assessment Circle, Dharmapuri District.

... Respondent in both W.Ps.

Petitions filed under Article 226 of the Constitution of India, praying to issue Writs of Certiorarified Mandamus to call for the records of the respondent and to quash the assessment proceedings in TIN Nos.33763290835/2012-13 and 33763290835/2013-14 dated 26.11.2015 as illegal and direct the respondent to assess the petitioner as per the principle of law enshrined in the Article 366(29A)(b) of the Constitution of India read with Section 5 of the Tamil Nadu Value Added Tax Act 2006 and to consider only the value of goods involved in the works contract after adding gross profit ratio as per accounts to levy tax to pass fresh order for the years 2012-13 and 201314 respectively, by providing an opportunity of personal hearing for the affected petitioner.

For Petitioner in both Wp's : Mr.C.Baktha Siromoni For Respondent in both Wp's : Mr.K.Venkatesh, Government Advocate COMMON ORDER Heard Mr.C.Baktha Siromoni, learned counsel for the petitioner and Mr.K.Venkatesh, learned Government Advocate, appearing for the respondent.

2.With the consent of the learned counsel on either side, the writ petitions are taken up for final disposal. 3.The petitioner, who is a registered dealer on the file of the respondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 ("TNVAT Act" in short), has filed these writ petitions challenging the orders of assessment under the said Act for the assessment years 2012-2013 and 2013-2014. 4.At the very outset, it has to be pointed out that the impugned assessment orders were passed on 26.11.2015 and the petitioner took no steps to challenge the orders by filing appeals, and only when the recovery notice was issued to the petitioner, he has rushed to this Court and filed these writ petitions.

5.According to the petitioner, they have an excellent case on merits and if one more opportunity is granted to the petitioner, they would be able to establish that there is no reason for revising the assessment orders.

6.The learned counsel for the petitioner submitted that the notice dated 23.10.2015 which was issued to the petitioner itself is based on a report submitted by the Assistant Commissioner (Audit), Dharmapuri dated 10.09.2015, however, neither the copy of the Audit Report nor the contents thereof were made known to the petitioner. Further it is submitted that in the notice dated 23.10.2015, the respondent has invoked the power under Section 25 of the TNVAT Act and the said provision has no application to the facts and circumstances of the case on hand.

7.All these submissions made by the petitioner are on the merits of assessment and considering the fact that the petitioner had not agitated his rights at the appropriate time, this Court is not inclined to go into the claims challenging the impugned orders on the merits of assessment. However, considering the fact that the petitioner has been regularly filing his return earlier and if appropriate directions are not issued, the petitioner may be left without any remedy, this Court is inclined to pass an appropriate direction, but at the same time safeguarding the interest of the revenue. 8.In the light of the above facts and circumstances, the writ petitions are disposed of by directing the petitioner to pay 25% of the disputed tax for each of the assessment years, within a period of eight weeks from the date of receipt of a copy of this order. If this condition is complied with, then the petitioner is entitled to treat the impugned orders as show-

cause notices and submit their objections within ten days thereafter. On receipt of the objections, the respondent shall afford an opportunity of personal hearing to the petitioner and redo the assessment in accordance with law. Till such orders are passed, no coercive action shall be taken against the petitioner.

9.In the event, if the petitioner fails to comply with the condition imposed by this Court in the preceding paragraph, the benefit of this order will not enure to the petitioner and the writ petition would stand automatically dismissed, leaving it open to the respondent to enforce the order of recovery. 10.Consequently, the connected miscellaneous petitions are closed. No costs.

Sd/- Asst.Registrar (CS VIII ) /true copy/ Sub Asst. Registrar KM To The Commercial Tax Officer, Palacode Assessment Circle, Dharmapuri District.

+1cc to Mr.C.Baktha Siromoni, Advocate Sr. 47398 +1cc to the Special Government Pleader (Taxes) Sr. 47308 W.P.Nos.7846 and 7847 of 2017 and W.M.P.Nos.8572 and 8573 of 2017 KJ(CO) VR(01/08/2017)