Tvl. Balaji Rubber Industries v. The Commercial Tax Officer,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 06.06.2016 Coram The Hon'ble Mr.Justice T.S.Sivagnanam Writ Petition Nos.13320 to 13327 of 2015 (8 cases) and M.P.No.1 of 2015 (eight in nos.) W.P.No.13320 of 2015 to WP.13327 of 2015:

Tvl. Balaji Rubber Industries (P) Ltd., rep. by its Chairman K.Vaidyalingam, No.137/1B, Udupathan Pudur Road, Athanur Post, Rasipuram TK, Namakkal District - 636 301. ...Petitioner in all WPs Vs.

1.

The Commercial Tax Officer, Rowing Squad, Enforcement, Kancheepuram.

The Assistant Commissioner (CT) (FAC) Rasipuram Assessment Circle, Rasipuram.

...Respondent 1 & 2 in all WPs

Common Prayer:

Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorari to call for records of the respondent in TIN No.33073160895/2007-08, 20082009, 2010-2011, 2011-2012, 2012-2013, 2013-2014, 2014-2015 dated 30.01.2015 and the consequential proceedings in TIN No.33073160895/2007-08, 2008-2009, 2010-2011, 2011-2012, 20122013, 2013-2014, 2014-2015 dated 25.03.2015, and to quash the same.

For Petitioner : Mr.S.Raveekumar For Respondents : Mr.S.Manoharan Sundaram Additional Government Pleader

COMMON O R D E R Heard Mr.S.Raveekumar, learned counsel appearing for the petitioner and Mr.S.Manoharan Sundaram, learned Additional Government Pleader for respondents, and perused the materials placed on record.

Since the issue involved in these Writ Petitions are identical in nature, these Writ Petitions are taken up together, and disposed of, by this common order.

3.

The petitioner in all these Writ Petitions is a registered dealer, under the provisions of Tamil Nadu Value Added Act, 2006 ( hereinafter, referred to as 'the Act'). The challenge in these Writ Petitions is to the assessment orders passed by the second respondent, as well as the orders passed by him in the Petitions filed under Section 84 of the Act, in respect of the assessment years 2007-08 to 2014-15. 4.

It is an admitted case that, though show causes notices were received by the petitioner, from 2007-08 to 201314, they did submit any objection, however, for the year 201415, objection was filed on 05.12.2014. The petitioner's contention is that they raised objection before the Authority, as the allegations in all the show cause notices were identical, and the show cause notices were issued on the same day, viz., 27.11.2014. Ultimately, the second respondent passed revised assessment orders on 30.01.2015, for eight years i.e., 2007-08 to 2014-15.

Since there were certain errors apparent on the face of the records in the said revised assessment orders, the petitioner has filed Petitions under Section 84 of the Act, seeking rectification of the defects pointed out therein, by citing certain decisions of this Court, which covers the issues, and requested for affording an opportunity of personal hearing. The second respondent, however, dismissed the Petitions filed under Section 84 of the Act, stating that there are no errors, apparent on the face of record, and so far as the request made by the petitioner for affording an opportunity of personal hearing is concerned, the Authority stated that there is no need to afford such opportunity.

5.

The scope of Section 84 of the Act, was considered by this Court in several decisions, as to what extent, the Authority would be entitled to exercise the power. In fact, I had an occasion to consider the scope of Section 84 of the Act, in the case of (Sellammal Spinners (P) Ltd., Vs. The Assistant Commissioner (CT) reported in (2016) S.C.C. Online Madras 865, wherein, I pointed out that mistakes are not only clerical mistakes, or calculation mistakes, which could be rectified in exercise of power under Section 84 of the Act, but the power is,

in fact, akin to the power of review. At this stage, it would be apposite to quote relevant paras from the said decision, which are as hereunder:- "3. Section 84 of the TNVAT Act confers the power on the assessing authority or appellate autority or revising authority, including the appellate Tribunal to rectify any error apparent on the face of record, at any time, within five years from the date of any order passed by it. In terms of proviso under sub-section (1) of Section 84 of the Act, no such rectification, which has the effect of enhancing an assessment or any penalty shall be made unless such authority has given notice to the dealer and has allowed him reasonable opportunity of being heard.

4.

The scope of Section 84 of the Act as been interpreted in several decisions and it has been held that the mistakes are not only clerical mistakes or calculation mistakes, which could be rectified in exercise of power under Section 84 of the Act, but the power is, in fact, akin to the power of review. Therefore, the respondent was not right in rejecting the petitioner's application under Section 84 of the At by observing that he has to seek the legal remedy before the Appellate Authority.

5.

The respondent was required to consider whether the errors pointed out by the petitioner was an error apparent on the face of record falling within the scope of Section 84 of the Act, and thereafter, take a decision on merits and in accordance with law. Therefore, the impugned order, dated 21.12.2015 calls for interference."

6.

If that could be the interpretation to Section 84 of the Act, obviously, the second respondent should afford an opportunity of personal hearing to the petitioner, especially, when the petitioner has stated that certain issues are covered by the decisions of this Court, viz., in i) (A.Appathurai Nadar and another Vs. Govt. of Madras and others) 1966 17 STC 305, ii) (Hotel Blue Nile Vs. State of Tamil Nadu and others) 1992 87 STC 513, iii) (Madras Granites P. Ltd., Vs. Commercial Tax Officer and another) 146 STC 642 and iv) (SRC Projects Pvt. Ltd., Vs. Commissioner of Commercial Taxes, Chennai) 2010 33 VST 333.

7.

In the light of the above, these Writ Petitions are partly allowed, and the impugned orders passed by the second respondent in Petitions filed under Section 84 of the Act are set aside and the matters are remanded to the second respondent for fresh consideration. The second respondent shall take note of the grounds raised by the petitioner in the Petitions filed under Section 84 of the Act, and afford an opportunity of personal hearing to the petitioner, and after considering all the aspects, including the decisions of this Court, that may be placed for consideration, pass a reasoned orders on merits and in accordance with law.

8.

The above direction be complied with by the second respondent within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petitions are closed. -s/dAssistant Registrar(CCC) True Copy Sub-Assistant Registrar sd To 1.

The Commercial Tax Officer, Rowing Squad, Enforcement, Kancheepuram.

The Assistant Commissioner (CT) (FAC) Rasipuram Assessment Circle, Rasipuram.

+8 ccs to Mr.S.Raveekumar Advocate sr.30369/16 +1 cc to Special Government Pleader sr.30221/16 Writ Petition Nos.13320 to 13327 of 2015 (8 cases) ak(co) aa22/06/2016