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Madras High CourtWP/1401/2018disposed of

A.Gopal, v. Assistant Commissioner

2018-01-23Honourable Mr Justice T. S. Sivagnanam3 pages

In the High Court of Judicature at Madras Dated : 23.1.2018 Coram :

The Honourable Mr.Justice T.S.SIVAGNANAM Writ Petition No.1401 of 2018 & WMP.Nos.1773 to 1775 of 2018 A.Gopal

...Petitioner

Vs The Assistant Commissioner (CT), Omalur Assessment Circle, Salem, Salem District.

...Respondent

PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorari to call for the records on the files of the respondent in its impugned proceedings made in TIN : 33083244746/2012-13 dated 22.4.2015 and quash the same as illegal and arbitrary.

For Petitioner :

Mrs.R.Hemalatha For Respondent :

Mr.M.Hariharan, AGP

ORDER

Mr.M.Hariharan, learned Additional Government Pleader accepts notice for the respondent. Heard both. By consent, the writ petition itself is taken up for final disposal.

2. The petitioner is before this Court challenging the assessment order dated 22.4.2015 passed by the respondent for the year 2012-13 under the provisions of the Tamil Nadu Value Added Tax Act, 2006. The petitioner has not preferred any appeal against the impugned assessment order within the time permitted and the present writ petition is undoubtedly a belated attempt made by the petitioner to remedy the breach.

3. The learned counsel for the petitioner submits that the petitioner had produced copies of the returns along with demand draft before the office of the respondent on 21.10.2016 and a copy of the letter delivery book where an endorsement has been made.

4. The learned Additional Government Pleader points out that

the records, which were produced by the petitioner, were for certain periods such as April, May and November 2015 and February 2016.

5. However, this Court finds that an endorsement has been made on 21.10.2016 regarding 2012-13 and it says 'accounts submitted'. Even assuming that the petitioner had produced accounts for the assessment year 2012-13 on 21.10.2016, the respondent cannot reopen the assessment dated 22.4.2015 based on such accounts in the absence of any petition filed by the petitioner under Section 84 of the said Act. Therefore, the present attempt of the petitioner stating that the accounts should be taken into consideration and that the assessment should be revised cannot be acceded to. However, the larger concern of this Court is that the impugned assessment order is of the year 2015 and that the Assessing Officer has not been able to recover tax or penalty as quantified except attaching the petitioner's property.

This stalemate will continue for several years leading to further litigation. Hence, this Court is inclined to issue appropriate directions, so that the petitioner can go before the Assessing Officer and submit their records especially when they state that majority of the work done by the petitioner as a contractor is for the Government Department such as TWAD Board. However, such liberty shall be subject to a condition.

6. Accordingly, the writ petition is disposed of with a direction to the petitioner to pay 25% of the disputed tax as quantified in the impugned order within three weeks from the date of receipt of a copy of this order. If the petitioner complies with the said condition, they will be entitled to treat the impugned order as a show cause notice and submit their objections within a period of seven days therefrom. 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. It is needless to add that the benefit of this order will not enure to the petitioner, if the petitioner fails to comply with the condition of payment of 25% of the disputed tax as quantified in the impugned order within the time stipulated. No costs. Consequently, the connected WMPs are closed.

Sd/- Assistant Registrar(CS-II) //True Copy// Sub Assistant Registrar RS

To The Assistant Commissioner(CT), Omalur Assessment Circle, Salem, Salem District.

+1cc to Mr.R.Hemalatha, Advocate SR.No.4984 +1cc to Special Government Pleader (Taxes) SR.No.5774 WP.No.1401 of 2018 & WMP.Nos.1773 to 1775 of 2018 KJI(CO) GN(20/02/2018)