M.Y. Bathruddin, v. The Commissioner Of

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.11.2018

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN W.P.(MD)No.798 of 2015 and M.P.(MD)No.1 of 2015 M.Y.Bathruddin, S/o.Mahammed Yusuf, Proprietor, M/s.M.Y.Bathruddin, No.3, Pulavar Street, Dindigul - 624 002.

... Petitioner Vs.

1. The Commissioner of Commercial Taxes, O/o. The Principal and Special Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai - 600 005.

2. The Assistant Commissioner(CT)-III, Commercial Tax Building, Sub-Collector's Office Road, Dindigul - 624 001. ... Respondents PRAYER : Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for records pertaining to the impugned proceedings of the second respondent in TIN:33655240159/2012-13 dated 08.12.2014 and quash the same and to consequently direct the second respondent to re-do the assessment afresh after giving adequate opportunity to the petitioner.

For Petitioner : Mr.B.Rooban For Respondents : Mr.Aayiram K.Selvakumar, Additional Government Pleader.

O R D E R

The petitioner is an assessee registered with the second respondent. The subject matter pertains to the assessment year 2012-2013. The second respondent issued notice dated 20.10.2014 alleging that the petitioner herein had made certain bogus purchases from K.A.K.Tanners, Dindigul. The petitioner herein offered his reply vide explanation dated 20.11.2014 along with supporting materials. Thereafter, the impugned order came to be passed. Questioning the same, this Writ petition has been filed.

2. Heard the learned counsel appearing for the petitioner and the learned Government counsel appearing for the respondents.

3. Mr.C.Sundara Moorthy, Assistant Commissioner-III, Commercial Taxes, Dindigul/the second respondent herein is present in person and assisted this Court.

4. It is not in dispute that the matters that have not been referred to in the show cause notice, find place in the impugned order. On this sole ground, the impugned order has to be set aside and accordingly, it is set aside.

5. But then, before remanding the matter to the file of the second respondent, this Court must make certain observations. The case of the petitioner is that he made purchases from one K.A.K.Tanners. The said K.A.K.Tanners is also an assessee registered with the second respondent. If the said K.A.K.Tanners is at fault, as per the decision rendered in W.P.No.9265 of 2013, dated 06.11.2014 in the case of Infiniti Wholesale Limited, Chennai Vs. The Assistant Commissioner(CT), Koyambedu Assessment Circle, Chennai, the authority will have to proceed only against the selling dealer. The second respondent while passing orders afresh in accordance with law, will have to bear in mind the mandate laid down by the High Court vide order dated 06.11.2014 in W.P.(MD)No.9265 of 2013.

6. The second respondent levied purchase tax on the petitioner. A mere purchase by the petitioner from unregistered sellers will not attract the purchase tax, unless the other conditions are also fulfilled. The second respondent will give a specific finding as to whether those conditions are fulfilled before levying purchase tax.

7. With these observations, the matter is remitted to the file of the second respondent. The second respondent is at liberty to issue fresh notice to the petitioner. After affording an opportunity of personal hearing to the petitioner, the second respondent shall pass orders afresh in accordance with law.

8. The Writ petition stands allowed, accordingly. No costs. Consequently, connected Miscellaneous petition is closed. Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar(CS-II)

To

1. The Commissioner of Commercial Taxes, O/o. The Principal and Special Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai - 600 005.

2. The Assistant Commissioner(CT)-III, Commercial Tax Building, Sub-Collector's Office Road, Dindigul - 624 001.

+1 cc To Mr.B.Rooban, ADVOCATE IN SR NO.96500 +1cc to Special Government Pleader Sr.No.96683 Pmu MK/ES/RSK/SAR 2/27.12.2018/3P/5C W.P.(MD)No.798 of 2015 and M.P.(MD)No.1 of 2015 22.11.2018