Tvl.Fairdeal Enterprises v. The Commercial Tax Officer

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.07.2018

CORAM:

THE HONOURABLE MR.JUSTICE M.GOVINDARAJ W.P.(MD) Nos.14731 to 14740 of 2018 and W.M.P.(MD).Nos.13263 to 13272 of 2018 Tvl.Fairdeal Enterprises, rep. by its Proprietor Y.Kummanan, 284B, Raja Street, Ramachandra Nagar, Madurai.

... Petitioner in all W.Ps vs.

The Commercial Tax Officer (FAC) West Veli Street Circle, Madurai.

Respondent in all W.Ps PRAYER in W.P.(MD).No.14731/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2007-08, dated 27.04.2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.14732/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2008-09, dated 27.04.

2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.14733/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2009-10, dated 27.04.2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.

14734/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2010-11, dated 27.04.

principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.14735/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2011-12, dated 27.04.2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.14736/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2012-13, dated 27.04.

2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.14737/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2013-14, dated 12.05.2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.

14738/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2014-15, dated 12.05.2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil. PRAYER in W.P.(MD).No.14739/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2015-16, dated 27.04.2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil.

PRAYER in W.P.(MD).No.14740/2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, calling for the records in TIN 33635021144/2016-17, dated 27.04.2018 issued by the respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the respondent to pass an assessment order afresh considering the representation dated nil.

In All W.Ps:

For Petitioner :

Mr.S.Karunakar For Respondent :

Mr.S.Dhayalan Government Advocate C O M M O N O R D E R Mr.S.Dhayalan, learned Government Advocate, takes notice on behalf of the respondent.

2. By consent of both parties, all the writ petitions are taken up for final disposal at the stage of admission itself.

3. The petitioner in all the writ petitions is a registered dealer under the TNVAT Act, 2006, doing the business of selling electronic appliances and they used to submit their returns promptly. Pursuant to the surprise inspection conducted by the Enforcement Wing of the Department on 19.09.2016, revision notices were issued by the respondent on 21.12.2017 for the assessment years 2007-2008, 2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17. In response to the notices, the petitione has submitted the reply enclosing the details of the purchase, sale particulars etc., However, while passing orders, the authority has considered the reply filed by the petitioner, dropped proposals in respect of input tax credit and confirmed the proposal with regard to other aspects viz., receipt of other income, purchase turnover difference between profit and loss accounts, returns, sales returns, purchase returns, CP movement, purchases made from RC cancelled dealers and imposed penalty. Aggrieved over the same, the petitioner is before this Court.

4. It is not in dispute that the petitioner has submitted the objections for the proposals sent vide notices dated 21.12.2017. The Assessing Officer also considered the same, dropped certain proposals and confirmed other proposals. While doing so, the authority had not given any opportunity of personal hearing in respect of the confirmed proposals.

5. This Court in very many cases has reiterated that affording an opportunity of personal hearing is mandatory. The Head of the Department i.e the Commissioner of Commercial Tax has given clear instructions as to personal hearing. It is mandated in Circular dated 3.2.2014 issued by him in Clause 3(a), which is extracted hereunder:

3(a): Passing of Orders:

Fifteen days time limit 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. ii) Objections filed by the dealer on the preassessment/revision notices shall be examined in each and every issue meticulously and speaking order shall be passed addressing the objections raised. In short, the speaking order which is complete shall be passed. Iii) As the provision in the TNVAT Act stipulates the conditions of granting or personal hearing. It may be intimated in the notice and it shall invariably be afforded to the dealer irrespective of whether the dealer has opted for personal hearing or not".

In view of the above, it is mandatory to afford personal hearing, even if the same was opted or not. But in the instant cases, no personal hearing was given to the petitioner.

6. A Hon'ble Division Bench of this Court also in W.A.(MD) No.234 to 240 of 2015(In G.V.Cotton Mills (P) Ltd., Rep. by its Managing Director Vs. The Assistant Commissioner (CT), Avarayampalayam Assessment Circle Corporation of Shopping Complex, Coimbatore) dated 16.03.2018 has held as follows: 10.The respondent denied the appellant opportunity of hearing only on the ground that objection was not given to the pre-assessment notices. Even if objection was not given, still the assessing authority was expected to post the matter for hearing by issuing notice to the assessee.In case the assessee fail to appear,it is open to the Assessment Authoirty to pass orders on merits. We make the position clear that the failure to submit objection to the pre-assessment notice would not give a right to the Assessment Officer to deny opportunity of personal hearing to the assessee.

7. But in the instant cases, this mandatory procedure of affording personal hearing was not given to the petitioners. Therefore, the impugned orders, dated 27.04.2018 and 12.05.2018 are liable to be set aside.

8. Accordingly, the impugned orders, dated 27.04.2018 and 12.05.2018 are set aside. Insofar as the portion of confirming the proposal alone, the matter is remanded back to the respondent for fresh consideration. The respondent is directed to pass orders

within a period of one month from the date of receipt of a copy of this order, after affording an opportunity of personal hearing. 9.Accordingly, these writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CS-III) /True Copy/ Sub Assistant Registrar(CS-IV) To:

The Commercial Tax Officer (FAC) West Veli Street Circle, Madurai.

+2cc to Mr.S.Karunakar, Advocate Sr.No.72053,72035 +1cc to Spl.Government Pleader Sr.No.72257 VS VB/MMS/SAR4/06.08.2018/5P/5C W.P.(MD) Nos.14731 to 14740 of 2018 10.07.2018