M/S.Selvakumar Mills v. The Assistant Commissioner(St)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.10.2018
CORAM
THE HON'BLE MR. JUSTICE K.RAVICHANDRABAABU W.P.Nos. 19744 & 19745 of 2018 in W.M.P.Nos. 23186 & 23187 of 2018 M/s. Selvakumar Mills, Represented by G. Selvakumar Proprietor, S.F.No.37, Kuduvampatty road, Kannankurichi (P.O), Salem - 636008. ..Petitioner in both the W.Ps vs.
1. The Assistant Commissioner (ST), Salem rural circle, Salem.
2. The Branch Manager, HDFC Bank, D.No. 5/241, F, Meyyannur, Rathna arcade, Five roads, Salem - 636004. .. Respondents in both the W.Ps Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records on the files of the first respondent in Roc. No.640/2018/A3 and Roc. No.817/2018/A3 dated 27.06.2018 and quash the same as being barred by limitation, without jurisdiction, violative of principles of natural justice and hence invalid and illegal.
For Petitioner : Mr.C.Venkatraman For Respondents : Mr.M.Hariharan Additional Government Pleader C O M M O N O R D E R The petitioner in both the writ petitions are one and the same. These writ petitions are filed against the order
attaching the bank account maintained by the writ petitioner with the second respondent Bank. In one impugned proceedings, the demand is in respect of CST and in another, the demand is in respect of TNGST for the assessment year 2004-05.
2. The main grievance of the petitioner before this Court against the impugned proceedings is that they were issued without passing an order of assessment. It is the specific case of the petitioner that no notice of proposal was ever issued to them, nor any order of assessment was served on them so far, in respect of assessment year 2004-05, either under TNGST or under CST. Therefore, it is contended that the impugned proceedings attaching the bank account maintained by the petitioner, based on the demand which did not precede with any assessment order, is unsustainable.
3. When the matter was taken up earlier for admission, this Court, after recording the above said contention, directed the Additional Government Pleader, who took notice for the respondents, to get instructions. Accordingly, the matter was adjourned for more than one occasion for getting instruction from the respondents. When the matter was listed on 16.08.2018, the learned counsel appearing for the respondents submitted that the relevant file could not be traced and thus, he sought further time. Considering the above stated facts and circumstances, this Court granted interim order of stay of the impugned proceedings and adjourned the matter after three weeks. Thus, the matter is listed today for further hearing.
4. Though a counter affidavit is filed, it does not meet the specific allegation made by the petitioner that the Assessing Officer has not passed any order of assessment for the relevant assessment year. On the other hand, a letter addressed by the respondents to the Special Government Pleader dated 20.09.2018, a copy of which is placed before this Court, only indicates that the relevant files are not traceable and they were misplaced during the shifting of the office from the old premises to new premises.
5. It is the clear case of the petitioner that no notice of proposal was given to them. It is the further case of the petitioner that no assessment order was passed and served on them. When such specific allegations are made, it is for the respondents to place relevant materials before this Court and disprove such contention. However, the respondents failed to place any material to disprove the above said contention raised by the petitioner. On the other hand, it is admitted by the respondents that the files are not traceable. If that being the position, this Court, cannot presume or assume as though, an order of assessment was passed against the petitioner.
Therefore, this Court is left with no other option except to go by the averments made by the petitioner and to come to a conclusion that the impugned attachment proceedings are presumably, not preceded with an order of assessment. Consequently, this Court is satisfied that the impugned attachment proceedings cannot withstand the scrutiny of this Court as the same was without any authority of law.
6. Accordingly, these writ petitions are allowed and the impugned attachment proceedings are set aside. The disposal of these writ petitions or any other observations made herein will not stand in the way of the respondents to proceed against the petitioner, if they can able to trace the file and locate the order of assessment, if any, passed already. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CS-IX) //True Copy// Sub Assistant Registrar sni To
1. The Assistant Commissioner (ST), Salem rural circle, Salem.
2. The Branch Manager, HDFC Bank, D.No. 5/241, F, Meyyannur, Rathna arcade, Five roads, Salem - 636004.
+1cc to Mr.C.Venkatraman, Advocate, S.R.No. 69870 +1cc to the Special Government Pleader(Taxes), S.R.No. 69762 W.P.Nos. 19744 & 19745 of 2018 RSI(CO) GN(30/10/2018)