M/S.Alagar Poly Bags v. The Joint Commissioner Iii

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 13.07.2016

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.32622 of 2004 W.M.P.No.39500 of 2004 M/s Alagar Poly Bags rep. by its Managing Partner G.Balachander Tuticorin 628 005.

.. Petitioner Vs 1.The Joint Commissioner III (SMR) of the Commercial Taxes Office of the Special Commissioner and Commissioner of the Commercial Taxes Chepauk, Chennai 600 005.

2.The Appellate Assistant Commissioner Tirunelveli, Palayamkottai Tirunelveli.

3.The Deputy Commercial Tax Officer III Beach Road, Tuticorin 628 002.

.. Respondents Prayer: The Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of certiorari to call for the records on the files of the first respondent in Reference No.M1/F1/73227/95, dated 20.01.2003 and quash the same as SMR. 662/97, illegal.

For Petitioner : Mr.K.Jayachandran For Respondents: Mr.S.Kanmani Annamalai Additional Government Pleader C O M M O N O R D E R Heard Mr.K.Jayachandran, learned Counsel appearing for the petitioner and Mr.S.Kanmani Annamalai, learned additional Government Pleader appearing on behalf of the respondents and with the consent of learned counsel appearing on either side, this Writ Petition is taken up for final disposal.

2.The petitioner who is a registered dealer under the provisions of the erstwhile Tamil Nadu General Sales tax Act, 1959 (TNGST Act), has filed this Writ Petition, challenging the order passed by the first respondent, the Revisional Authority, who has exercised suo moto power of revision conferred under section 34 of the Act to revise the order passed by the Appellate Assistant Commissioner (CT), Tirunelveli dated 06.02.1995.

3.The petitioner has challenged the impugned proceedings on the technical ground that suo moto power has been exercised beyond the statutory period prescribed under section 34 (2)(c) of the TNGST Act. In terms of sub-section (2) of Section 34 TNGST Act, the Joint Commissioner of Commercial Taxes shall not initiate proceedings against the any such order or proceedings, referred to in sub-section (1), if more than five years have expired after the passing of the order.

4.In the instant case, though a show cause notice was issued by the Revisional Authority on 19.11.1997 and the petitioner had submitted their objections on 16.12.1997, the authority did not pass final orders within five year period. In my view, the embargo placed on the Revisional Authority in terms of Section 34 (2)(c), has to be strictly interpreted. If such interpretation is not given, finality cannot be arrived to the orders which are passed by the Assessing Offer or Appellate Authority. Therefore, this Court is inclined to accept the submissions of the petitioner, that merely because show cause notice was issued within a period of five years, that will not be a ground to continue the proceedings, after a period of five years, after issuance of the show cause notice.

The presumption is so because, after issuance of notice and the petitioner promptly submitted their objections within the time permitted. Therefore, the Revisional Authority could have either accepted the reply given by the petitioner or passed orders. However, for more than five years, he did not take any action. Therefore, it is deemed that the Revisional Authority was convinced with the objections filed by the petitioner. Therefore, on the above technical ground, the petitioner is entitled to succeed.

5.Accordingly, the Writ Petition is allowed and the impugned order is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar To 1.The Joint Commissioner III (SMR) of the Commercial Taxes Office of the Special Commissioner and Commissioner of the Commercial Taxes Chepauk, Chennai 600 005.

2.The Appellate Assistant Commissioner Tirunelveli, Palayamkottai Tirunelveli.

3.The Deputy Commercial Tax Officer III Beach Road, Tuticorin 628 002.

+1cc to Mr.K.Jayachandran, Advocate Sr.39249 +1cc to the Special Government Pleader Sr.39298 W.P.No.32622 of 2004 ak[co] srg 29/07/2016