Tvl.Renaatus Procon Private Limited v. Assistant Commisioner (St) (Fac)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25.09.2023 CORAM :

THE HONOURABLE MR.JUSTICE C.SARAVANAN W.P.Nos.28023, 28026, 28028, 28029, 28031 and 28033 of 2023 and W.M.P.Nos.27535, 27536, 27538, 27542, 27545, 27548 of 2023 Tvl.Renaatus Procon Private Limited, Represented by its Chairman and Managing Director, Selvasundaram.P, 156, Mullamparappu, N.G.Palayam Post, Erode District - 638 115.

... Petitioner in all W.Ps Vs.

The Assistant Commissioner (ST)(FAC), Kodumudi Assessment Circle, 2nd Floor, Commercial Taxes Building, R.D.O. Office Campus, North Pradhakshanam Road, Karur - 639 001.

... Respondent in all W.Ps Prayer in W.P.No.28023 of 2023: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records on the files of the respondent in TIN : 33602905736/2012-2013 dated 01.06.2023 and quash the same as being without its jurisdiction, authority of law and contrary to the principles of natural justice. 1/13

Prayer in W.P.No.28026 of 2023: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records on the files of the respondent in TIN : 33602905736/2013-2014 dated 01.06.2023 and quash the same as being without its jurisdiction, authority of law and contrary to the principles of natural justice. Prayer in W.P.No.28028 of 2023: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records on the files of the respondent in TIN : 33602905736/2014-2015 dated 01.06.2023 and quash the same as being without its jurisdiction, authority of law and contrary to the principles of natural justice. Prayer in W.P.No.

28029 of 2023: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records on the files of the respondent in TIN : 33602905736/2015-2016 dated 01.06.2023 and quash the same as being without its jurisdiction, authority of law and contrary to the principles of natural justice. Prayer in W.P.No.28031 of 2023: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records on the files of the respondent in TIN : 33602905736/2016-2017 dated 01.06.2023 and quash the same as being without its jurisdiction, authority of law and contrary to the principles of natural justice. Prayer in W.P.No.

28033 of 2023: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records on the files of the respondent in TIN : 33602905736/2017-2018 dated 01.06.2023 and quash the same as being without its jurisdiction, authority of law and contrary to the principles of natural justice.

For Petitioner : Mr.V.Sundareswaran (In all W.Ps) For Respondent : Mr.C.Harsharaj (In all W.Ps) Additional Government Pleader COMMON ORDER Mr.C.Harsharaj, learned Additional Government Pleader takes notice on behalf of the respondent.

2. This is the third round of litigation before this Court.

3. Earlier, the petitioner had challenged the decision of the Advance Ruling Authority (Authority for Clarification and Advance Ruling) passed in ACAAR No.135/2014-2015 (Acts Cell-II/7028/2015) dated 02.09.2015 before this Court in W.P.No.30528 of 2015.

4. By an order dated 29.09.2015, the order of the Authority for Clarification and Advance Ruling passed under Section 48A of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 was quashed by this Court with certain directions.

5. Relevant portion of the order reads as under:- 3/13

"9. In view of the fact that the petitioner was not provided with an opportunity of personal hearing before passing the impugned order, coupled with the fact that the respondent department has not followed the statutory provisions provided under the Act as stated supra and also in view of the Judgment of this Court reported in [2014] 68 VST 494 (Mad) referred supra, the impugned order is liable to be set aside and the matter has to be remitted back to the 1st respondent for passing orders afresh.

10. In the result, the impugned order of the 1st respondent dated 02.09.2015 is set aside and the matter is remitted back to the 1st respondent for passing appropriate orders, after affording an opportunity of personal hearing to the petitioner. Such exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order. The writ petition is disposed of with the above directions. No costs. Connected miscellaneous petition is closed."

6. The said Authority for Clarification and Advance Ruling thereafter passed a fresh order on 26.04.2019 in ACAAR No.135/2015-2016, by which time, the TNVAT Act, 2006 stood subsumed into the respective GST enactments/respective GST Acts, 2017.

7. The petitioner therefore challenged the aforesaid order dated 26.04.2019 before this Court in W.P.No.31103 of 2019.

8. At the time of arguments, the petitioner conceded that the Authority 4/13

for Clarification and Advance Ruling does not exist in the form in which it existed under the provisions of the TNVAT Act, 2006. Hence, the application filed by the petitioner itself does not survive.

9. Taking note of the submissions made by the petitioner, this Court passed a final order in W.P.No.31103 of 2019 on 09.09.2022 with the following directions:- "4. The sum and substance of the petitioner's submissions is that, with the enacting of the TNGST Act, 2018, the Authority for Clarification and Advance Ruling does not exist in the form in which it did under the TNVAT Act and hence, the application filed by the petitioner itself does not survive. Thus, the impugned order is assailed on this basis.

5. In the counter filed the respondent, they rely on the provisions of Section 174 of the TNGST Act to take aid from the saving provisions. However, in view of the stand taken by the petitioner, I need hardly address the defence taken by the respondents, as I accede to the submissions made by the petitioner, concluding that, both the application and the impugned order would survive no longer.

6. It is brought to my notice that the assessments for various years have been kept pending by the Authority awaiting disposal of this writ petition and in light of an interim order passed by this Court on 04.11.2019 directing the respondents to maintain status quo. This order has been interpreted by the respondents to mean that all assessment should be kept pending. Seeing as the assessments relate to the periods 201415, 2017-18, a period of 16 weeks is granted to the parties to complete all pending assessments in accordance with law. 5/13

7. Accordingly, this writ petition stands disposed in the above terms. No Costs. Connected miscellaneous petition is closed."

10. Pursuant to the above, the Assessing Officer has issued a fresh Show Cause Notices on 17.04.2023 for the Assessment Years 2012-2013 and 20132014. The petitioner has replied to the same and had sought for certain time on 22.05.2023 for furnishing further documents to substantiate the case. On the same date, i.e., on 22.05.2023, the Assessing Officer namely the respondent herein granted time till 31.05.2023 and he has proceeded to pass the impugned Assessment Orders on 01.06.2023 for the Assessment years from 2012-13 to 2017-18.

11. It is the case of the petitioner that there is a procedural infraction inasmuch as the petitioner submitted his additional submission on 09.06.2023 and which was also received by the respondent on 12.06.2023. It is further submitted that the respondent has predated the order knowing fully well that the petitioner has a very good case on merits.

12. That apart, the learned counsel for the petitioner would submit that the issue is squarely covered in favour of the petitioner in terms of the Himachal Pradesh Government Act in its Notification No.EXN-F(10)-5/2015 6/13

Shimla - 171 002, Dated 14th January, 2016.

13. It is submitted that the petitioner is indeed engaged in manufacturing all kind of bricks including fly ash which is classified under the Entry No.22(a) of Part-B of First Schedule to the TNVAT Act, 2006 instead, the respondent has foisted residuary in Entry No.15 of Part-C of the First Schedule to the TNVAT Act, 2006 by treating the bricks manufactured by the petitioner as cement products of all kinds including Cement Tiles, Pavement Blocks etc., excluding Cement Jolley, Doors, Window Frames made of RCC and RCC Pipes. It is further submitted that the petitioner was forced to approach the Advance Ruling Authority vide Application ACAAR No.135/2014-2015 dated 02.09.2015 as the petitioner was being subjected to unnecessary audit return/demand.

14. The learned counsel for the petitioner also submitted that the said products was liable to tax at 3% on the sale of Bricks manufactured out of fly ash with effect from 27.03.2002 by G.O.Ms.No.33 CT (B2) dated 27.03.2002 - Notification No. II(1)/CT/19(b-19)/2002 - Gazette dated 27.03.2002.

15. The learned Additional Government Pleader for the respondent on 7/13

the other hand would submit that the decision of the Authority for Clarification and Advance Ruling under Section 48A(3) of the TNVAT Act, 2006 is binding and therefore, the subsequent order that was passed on 26.04.2019 cannot be ignored. It is submitted that, this Court while passing order dated 09.09.2022, this Court has concluded that both the application and the impugned order would survive no longer and therefore, this Court had directed the respondent to complete the assessment within a period of sixteen weeks. It is also submitted that pursuant to the above, Show Cause Notices dated 17.04.2023 was issued and more than five adjournments had been sought for by the petitioner.

16. The learned Additional Government Pleader for the respondent further submitted that the Assessing Officer has come to an independent conclusion on facts and therefore, on this count also, the writ petitions are not maintainable. It is further submitted the matter relates to classification and therefore, at best, the matter left open to the authorities under the hierarchy of the TNVAT Act, 2006 to decide the issue on merits.

17. I have considered the arguments advanced by the learned counsel for 8/13

the petitioner and the learned Additional Government Pleader for the respondent.

18. The petitioner has invited an adverse order from the Authority for Clarification and Advance Ruling earlier on 02.09.2015 and thereafter on 26.04.2019. Order dated 09.09.2022 was passed in W.P.No.31103 of 2019 based on the submission of the learned counsel for the petitioner. The Court in W.P.No.31103 of 2019 merely directed all pending proceedings to be completed within a period of sixteen (16) weeks from the date of receipt of the copy of the order. The Court has not quashed the order dated 26.04.2019 of the Authority for Clarification and Advance Ruling.

19. Therefore Order dated 26.04.2019 of the Authority for Clarification and Advance Ruling which was impugned in W.P.No.31103 of 2019 is binding on the petitioner as in terms of Section 48A(3) of the TNVAT Act, 2006.

20. The fact remains that the Assessing Officer has applied his mind while passing an order determining the classification which was earlier confirmed by the Authority for Clarification and Advance Ruling by order 9/13

dated 02.09.2015 and thereafter, once again the Authority for Clarification and Advance Ruling vide order dated 26.04.2019.

21. Therefore, there is no scope for interfering with the impugned order under Article 226 of the Constitution of India particularly, when the order discusses the issue relating to classification. The issues relating to classification are best left to be decided by the authorities under the hierarchy of the TNVAT Act, 2006.

22. Considering the above, these writ petitions are liable to be dismissed. However, liberty is given to the petitioner to file a Statutory Appeal before the Appellate Commissioner under Section 51 of the TNVAT Act, 2006 within a period of thirty days from the date of receipt of a copy of this order subject to payment of 25% of the amount confirmed in the impugned Assessment Orders.

23. On such compliance and filing of the appeal, the Appellate Commissioner shall dispose the appeal on merits and in accordance with law within a period of 12 weeks from the date of receipt of a copy of this order.

24. It is made clear, all the issues relating to classification are left open to 10/13

be canvassed before the Appellate Commissioner.

25. In case, the petitioner is still aggrieved, the petitioner may approach the Appellate Tribunal which is the ultimate fact finding authority.

26. These Writ Petitions are dismissed with the above observations and liberty. No costs. Consequently, connected Writ Miscellaneous Petitions are closed.

25.09.2023 Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order mac/arb Note: Registry is directed to return the certified copies of the impugned Assessment Orders in order to facilitate the petitioner to file a statutory appeal. 11/13

To The Assistant Commissioner (ST)(FAC), Kodumudi Assessment Circle, 2nd Floor, Commercial Taxes Building, R.D.O. Office Campus, North Pradhakshanam Road, Karur - 639 001.

C.SARAVANAN, J.

12/13

mac/arb W.P.Nos.28023, 28026, 28028, 28029, 28031 and 28033 of 2023 and W.M.P.Nos.27535, 27536, 27538, 27542, 27545 and 27548 of 2023 25.09.2023 13/13