Tvl. Essa Garments v. The Commercial Tax Officer

IN THE HIGH COURT OF JUDICATURE OF MADRAS

Dated : 17.09.2020

CORAM:

THE HONOURABLE MR. JUSTICE M.S. RAMESH W.P.Nos.3166 to 3171 of 2016 and W.M.P.Nos.2599 to 2604 of 2016 Tvl. Essa Garments rep. by its Proprietor Mr.S.Sadiqali No.10, Pushpa Nagar, Power Garden, Tirupur-641 604.

...Petitioner in all Wps.

Vs.

1.The Commercial Tax Officer, (Enforcement), Group-III, Coimbatore.

2.The Assistant Commissioner (CT) (FAC), Bazaar Circle, Tirupur.

...Respondents in all Wps.

PRAYER: in WP.3166 /2016: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, calling for the records of the second respondent in TIN No.33212425558/2010-11 dated 11.01.2016 and to quash the same as being contrary to the principle laid down by this Court in the judgment reported in (2012) 50 vST 179 (Mds) Althaf Shoes (P) Ltd., Vs. Assistant Commissioner (CT), Valluvarkottam Assessment Circle, Chennai and that of the principle laid down by this Court in the judgment reported in 2015 (82) VST 457 [Infinity Wholesale Ltd., V. Assistant Commissioner (CT), Koyambedu Assessment Circle, Chennai].

WP No.3167 of 2016: Writ petition filed under Article 226 of the Constitution of India , praying to issue a writ of certiorari,calling for the records on the files of the 2nd respondent in TIN No. 33212425558/2012-13 dt 11.1.2016 and quash the same as being contrary to the principle laid down by this Honourable Court in the Judgment reported in (2012) 50 VST 179 (Mds) Althaf Shoes (P) Ltd., Vs. Assistant Commissioner (CT),

Valluvarkottam Assmt. Circle, Chennai) and that of the principle laid down by this Honourable Court in the Judgment reported in (2015) 82 VST 457 (Infinity Wholesale Ltd., Vs. Assistant Commissioner (CT), Koyambedu Assmt. Circle, Chennai) WP No.3168 of 2016: Writ petition filed under Article 226 of the Constitution of India , praying to issue a writ of certiorari,calling for the records on the files of the 2nd respondent in TIN No. 33212425558/2013-14 dt 11.1.2016 and quash the same as being contrary to the principle laid down by this Honourable Court in the Judgment reported in (2012) 50 VST 179 (Mds) Althaf Shoes (P) Ltd., Vs. Assistant Commissioner (CT), Valluvarkottam Assmt. Circle, Chennai) and that of the principle laid down by this Honourable Court in the Judgment reported in (2015) 82 VST 457 (Infinity Wholesale Ltd., Vs.

Assistant Commissioner (CT), Koyambedu Assmt. Circle, Chennai) WP No.3169 of 2016: Writ petition filed under Article 226 of the Constitution of India , praying to issue a writ of certiorari,calling for the records on the files of the 2nd respondent in TIN No. 33212425558/2011-12 dt 11.1.2016 and quash the same as being contrary to the principle laid down by this Honourable Court in the Judgment reported in (2012) 50 VST 179 (Mds) Althaf Shoes (P) Ltd., Vs. Assistant Commissioner (CT), Valluvarkottam Assmt. Circle, Chennai) and that of the principle laid down by this Honourable Court in the Judgment reported in (2015) 82 VST 457 (Infinity Wholesale Ltd., Vs. Assistant Commissioner (CT), Koyambedu Assmt. Circle, Chennai) WP No.

3170 of 2016: Writ petition filed under Article 226 of the Constitution of India , praying to issue a writ of certiorari,calling for the records on the files of the 2nd respondent in TIN No. 33212425558/2009-10 dt 11.1.2016 and quash the same as being contrary to the principle laid down by this Honourable Court in the Judgment reported in (2012) 50 VST 179 (Mds) Althaf Shoes (P) Ltd., Vs. Assistant Commissioner (CT), Valluvarkottam Assmt. Circle, Chennai) and that of the principle laid down by this Honourable Court in the Judgment reported in (2015) 82 VST 457 (Infinity Wholesale Ltd., Vs. Assistant Commissioner (CT), Koyambedu Assmt. Circle, Chennai) WP No.

3171 of 2016: Writ petition filed under Article 226 of the Constitution of India , praying to issue a writ of certiorari,calling for the records on the files of the 2nd respondent in TIN No. 33212425558/2014-15 dt 11.1.2016 and quash the same as being contrary to the principle laid down by this Honourable Court in the Judgment reported in (2012) 50 VST 179 (Mds) Althaf Shoes (P) Ltd., Vs. Assistant Commissioner (CT), Valluvarkottam Assmt.

laid down by this Honourable Court in the Judgment reported in (2015) 82 VST 457 (Infinity Wholesale Ltd., Vs. Assistant Commissioner (CT), Koyambedu Assmt. Circle, Chennai) For Petitioner : Mr.R.Senniappan For Respondents:Mr.R.Swarnavel, GA (T) C O M M O N O R D E R With the consent of both the parties, the present Writ Petitions are heard today through Video Conferencing.

2. The common issue involved in all these Writ Petitions is that the impugned proceeding is made on the basis of the Audit Reports/Inspection Proposals proceeded from the Enforement Wing or from ISIC Authorities. Among other grounds, the petitioner herein has raised a ground that the Assessing Officer, who is a Quasi Judicial Authority, has not independently applied his mind while dealing with the impugned proceedings, but had adopted the reports and proposals of the Enforcement Wing/ISIC Authorities, who are their higher authorities.

3. This ground raised by the petitioner has been upheld by this Court in various Writ Petitions holding that the Assessing Officer cannot be solely guided by the proposal given by the Enforcement Wing Officers and that the Assessing Officer has to independently consider the same, without being influenced by such proposals of the higher officials. Some of the decisions in which such a view has been taken are in the cases of Madras Granites (P) Ltd., Vs. Commercial Tax Officer and Another reported in 2006 (146) STC 642 (MAD) and Narasus Roller Flour Mills Vs. Commercial Tax Office, (Enforcement Wing), Sankagiri and another reported in 2015 (81) VST 560 (MAD).

4. Such a ratio laid down by this Court in all the above Writ Petitions stand good till date and in these background, the Commissioner of State Tax, Chennai had issued Circular No.3 dated 18.01.2019, empowering the Assessing Authority to deviate from the proposals, without seeking for approval from the Enforcement Wing/ISIC Authorities. The relevant portion of Circular No.3 dated 18.01.2019 reads thus:- "b)If the Assessing Authority is of the view that the Audit report or Inspection

proposals received from Enforcement wing or proposals received from ISIC are not in conformity with the Law or the established principles set by various higher judicial Forums and if he wishes to deviate from the proposals either partly or wholly, he himself can finalize the assessment or revision of assessment without seeking approval from the Enforcement Wing/ISIC Authorities who had approved the proposals, and reasons for the same to be recorded."

Thus, the Circular has empowered the Assessing Officers to henceforth independently deal with the assessment without being influenced by the proposals of the higher officials.

5. In view of the Circular No.3 dated 18.01.2019 issued by the Commissioner of State Tax, Chennai, all the impugned proceedings in these Writ Petitions, which proceeds on the basis of the proposals/reports of the Enforcement Wing/ISIC, are set aside and consequently, the matters are remanded back to the Assessing Officer. The Assessees are granted liberty to file their objections with all supporting documents, within a period of 30 days from the date of receipt of a copy of this order. On receipt of such objections, the Assessing Officer shall extend due opportunity of personal hearing to the Assessees/Representatives, if necessary through Video Conferencing and endeavor to conclude the assessment proceedings independently and not being influenced by any of the reports or proposals of the Enforcement Wing /ISIC authorities.

Such an exercise shall be completed atleast within a period of 12 weeks from the date of receipt of the objections. In case, if the objections are not received within the date of expiry of 30 days from the date of receipt of a copy of this order, the Assessing Officer shall commence the assessment proceedings, after the expiry of the 30 days indicated above.

6. With the above observations and directions, all the Writ Petitions stand thus allowed. Consequently, connected Miscellaneous Petition is closed. No costs.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar

DP To 1.The Commercial Tax Officer, (Enforcement), Group-III, Coimbatore.

2.The Assistant Commissioner (CT) (FAC), Bazaar Circle, Tirupur.

+1 cc to The Government Pleader, Sr.No. 30437 W.P.Nos.3166 to 3171 of 2016 and W.M.P.Nos.2599 to 2604 of 2016 SSV(CO) RMP(21/10/2020)