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Madras High CourtWP/14955/2019disposed of

V.L.S.Fibre v. The Assistant Commissioner(St)

2019-06-10Honourable Mr Justice M. Sundar5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :10.06.2019

CORAM

THE HON'BLE MR.JUSTICE M.SUNDAR W.P.Nos.14955, 14957 & 14958 of 2019 and W.M.P.Nos.14921, 14923 & 14925 of 2019 V.L.S.Fibre Rep.by its Partner Mr.V.Subramaniam, No.16, 3rd Cross Street, Sriram Nagar, Pauthipattu(Village), Kamaraj Nagar(Post) Avadi, Chennai - 600 071.

..Petitioner in all W.Ps vs The Assistant Commissioner(ST), Avadi Assessment Circle, No.26, Vivekananda Street, Gandhi Nagar, Avadi, Chennai - 54.

..Respondent in all W.Ps Prayer in W.P.No.14955 of 2019: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the impugned assessment order dated 29.03.2019 bearing reference No.CST/841662/2013-14 passed by the Respondent and quash the same and further direct the Respondent to pass a fresh order of assessment for the Assessment Year CST/2013-14 after providing an opportunity of personal hearing to the Petitioner to file its submission and documents.

Prayer in W.P.No.14957 of 2019: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the impugned assessment order dated 29.03.2019 bearing reference No.TIN/33071301793/2014-15 passed by the Respondent and quash the same and further direct the Respondent to pass a fresh order of assessment for the Assessment Year TNVAT/2014-15 after providing an opportunity of personal hearing to the Petitioner to make its submissions and to produce documents. Prayer in W.P.No.14958 of 2019: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the

impugned assessment order dated 29.03.2019 bearing reference No.TIN/33071301793/2015-16 passed by the Respondent and quash the same and further direct the Respondent to pass a fresh order of assessment for the Assessment Year TNVAT/2015-16 after providing an opportunity of personal hearing to the Petitioner to make its submissions and to produce documents. For Petitioner : Mr.T.Mohan (in all W.Ps) For Respondent : Mr.M.Hariharan Additional Government Pleader (in all W.Ps) C O M M O N O R D E R This common order will govern aforementioned three writ petitions. In other words, this common order will dispose of these three writ petitions on hand.

2. Mr.T.Mohan, learned counsel appearing on behalf of the counsel on record for the sole writ petitioner and Mr.M.Hariharan, learned Additional Government Pleader(AGP) on behalf of the sole respondent are before this Court.

3. This matter is listed under the caption 'ADJOURNED ADMISSION', but with the consent of learned counsel on both sides, main writ petitions are taken up, heard out and disposed of.

4. The core issue or in other words, the crux and gravamen of the bone of contention in all these three writ petitions is the same. This is not in dispute. In other words, there is no disputation or disagreement on this aspect of the matter.

5. Therefore, it will suffice to give a broad overview of bare minimum facts that are imperative for disposal of these three writ petitions.

6. In this backdrop, suffice to say that these writ petitions pertain to assessment orders passed by the respondent. While, 1st writ petition i.e., W.P.No.14955 of 2019 pertains to Central Sales Tax, the 2nd and 3rd writ petitions namely W.P.No.14957 of 2019 and W.P.No.14958 of 2019 pertain to the 'Tamil Nadu Value Added Tax' ['TNVAT'] governed by the 'Tamil Nadu Value Added Tax Act, 2006' ['TNVAT Act' for the sake of brevity].

7. With regard to the first writ petition alone, this is a second round of litigation as the writ petitioner approached this Hon'ble Court earlier against Assessment order dated 07.03.2016 and that writ petition was disposed of by this Court vide order dated 21.09.2016. To be noted, this Court is informed that earlier round of writ petition is writ petition in W.P.No.32556 of 2016 and while disposing of the writ petition, this Court, directed the petitioner inter alia to submit records, Books of Accounts, etc., to the Assessing officer.

8. This Court is also informed that in the other two writ petitions, there is no earlier round of litigations.

9. As mentioned supra, the core issue i.e., crux and gravamen is common in these three writ petitions. The core issue is that the writ petitioner sought time to file requisite records namely Books of Accounts and other related documents, in the personal hearing, but the impugned Assessment orders have been passed without granting time and by recording that the writ petitioners have not produced documents inspite of opportunity being given.

10. In this regard, learned counsel for writ petitioner drew the attention of this Court to an order passed by a Hon'ble Division Bench of this Court being an order dated 29.01.2018 in W.A.No.173/2018. In this order of Hon'ble Division Bench, a Circular issued by the Principal Secretary / Commissioner of Commercial Taxes being Circular No.7/2014 dated 03.02.2014 has been extracted.

11. Specific attention of this Court is drawn to paragraph 3 (a) (I) of the Circular, which read as follows: '3. In the light of the above, the following circular instructions are issued which must be scrupulously followed by assessing officers while passing assessment orders. Joint Commissioner / Deputy Commissioners should verify at random the assessment orders passed by the Assessing Officer while taking up cursory inspection and ensure compliance with these basic procedures while passing orders.

a)Passing of orders:- Fifteen days time shall be given as reasonable opportunity to dealers before passing any order and it shall be reckoned from the date of service of the notice. No order shall be passed without being satisfied of the reasonable opportunity and adopting the following process.

I) After issue of notice calling for the objections, if any further time is requested by the

dealer within a period of fifteen days, it shall be examined and reply to be given to the dealer regarding granting of time or not as the case may be only if, there exists a genuine reason.'

12. Hon'ble Division has held that the aforesaid Circular dated 03.02.2014 emphasizes that principles of natural justice should be adhered to. This is contained in Paragraph 14 of the order of this Court in W.A.No.173/2018 dated 29.01.2018 and it is extracted / reproduced hereunder:

'14. Besides other directions, circular dated 03.02.2014, emphasises that principles of natural justice should be adhered to. In the case on hand, one of the challenges made to the assessment order is that when opportunity of hearing was sought, it was denied.'

13. Adverting to the aforesaid order, it was submitted by learned counsel for writ petitioner that whenever time is sought, it should be examined and a reply should be given to the dealer regarding granting of time or not granting as the case may be. However, the aforesaid para 3 (a) (I) of aforementioned circular refers to cases, where time is requested by the dealer within a period of 15 days. Therefore, the question as to whether the aforesaid circular would apply to cases of this nature is left open as in the instant case, even without reference to the circular, there is no dispute that the writ petitioner dealer i.e., the writ petitioner assessee has sought time to produce documents in writing. Therefore, no prejudice would be caused, if an opportunity is given to the writ petitioner. This Court is informed by the writ petitioner counsel that documents have already been furnished and if a date is fixed for personal hearing, they will go before the respondents.

14. On instructions, it is submitted by the Revenue counsel that it would be desirable to have the date 02.07.2019 as the date fixed for this purpose.

15. Therefore, in the light of the narrative thus far, this Court passes the following order:

a) Impugned orders in each of these three writ petitions being reference Nos.CST/841662/2013-14, TIN/33071301793/2014-15, TIN/33071301793/2015-16 dated 29.03.2019 are set aside.

b) Personal hearing in each of these three cases shall be held on 02.07.2019 (Tuesday) at 12.00 noon by the respondent in his office.

c) In the personal hearing, the documents already submitted by the writ petitioner shall be examined and a

personal hearing shall be held.

d) Post personal hearing, the respondent shall pass Assessment orders afresh within a period of three weeks from 02.07.2019 i.e., on or before 23.07.2019. Learned counsel for writ petitioner, on instructions, submits that, on 02.07.2019 in the personal hearing, an authorized representative or an Advocate will appear before the respondent Assessment officer and make submissions without seeking any further time. e) Respondent shall communicate the Assessment order passed afresh under due acknowledgment to the writ petitioner within seven (7) working day from the date of the order.

16. All three writ petitions are disposed of with above directions. No costs. Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar (CS-IX) //True Copy// Sub Assistant Registrar kak To The Assistant Commissioner(ST), Avadi Assessment Circle, No.26, Vivekananda Street, Gandhi Nagar, Avadi, Chennai - 54.

+3 ccs to Mr.Anishkumar, Advocate, S.R.No.46735, 46733, 46734 +1 cc to the Spl. Government Pleader(taxes), S.R.No.47099 W.P.Nos.14955, 14957 & 14958 of 2019 and W.M.P.Nos.14921, 14923 & 14925 of 2019 SSD(CO) SSM(18/06/2019)