M/S.Pukra Exports, v. The Commercial Tax Officer,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.01.2016

CORAM:

THE HONOURABLE Mr.JUSTICE K.RAVICHANDRABAABU W.P.(MD)No.114 of 2016 Pukra Exports, Rep.by its Managing Partner Mr.V.Pradeep, No.72/74, Pugalur Road, Karur ...

Petitioner Vs.

1.The Commercial Tax Officer, Karur (North) Assessment Circle, Karur.

2.The Appellate Deputy Commissioner (CT), Commercial Tax Building, District Court Campus, Trichy.

...

Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the records of the 1st respondent in TIN No.33643661053/2012 - 2013 dated 05.03.2015 and quash the same as unlawful and invalid.

For Petitioner : Mr.R.D.Ganesan For Respondents : Mr.R.Karthikeyan, AGP

O R D E R

This Writ petition is filed challenging the order of assessment dated 05.03.2015.

2.It is contended by the learned counsel appearing for the petitioner that the petitioner was not in a position to give reply to the show cause notice issued to them within time due to certain unavoidable circumstances and even in the absence of any reply / explanation, the Assessing Authority ought to have given valid reasons for imposing the tax and penalty on the petitioner. Therefore, the present Writ petition is filed questioning the order of assessment. 3.Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 4.It is not in dispute that as against the order of assessment, an appeal will lie before the Appellate Deputy Commissioner, Trichy.

It is also not in dispute that before passing the order of assessment, the petitioner was issued with show cause notice and they have not filed any written objection. When that being the factual position, the petitioner cannot be permitted to contend that the Assessing Authority is not justified in passing the order of assessment, especially, when the petitioner failed to give their explanation / objection to the show https://hcservices.ecourts.gov.

cause, stating as to how the proposed levy of tax and penalty are not sustainable. Having failed to do so, the petitioner cannot come and now raise all the grounds in this Writ petition as if this Court is sitting as an Appellate Authority as against the order of assessment. 5.It is further admitted by the learned counsel appearing for the petitioner that in pursuant to the order of assessment impugned in this Writ petition, the tax and penalty have been recovered from the petitioner already and therefore, an opportunity may be given to the petitioner to agitate the matter on merits.

6.Needless to say that the Appellate Authority is also a fact finding authority and therefore, the petitioner can very well go and file an appeal before the Appellate Authority. As the time limit for filing such appeal has already expired and considering the fact that the tax and penalty have already been recovered from the petitioner, this Court is of the view that the petitioner must be given an opportunity to agitate the matter before the Appellate Authority on merits so that the sustainability of levy of tax and penalty on the petitioner can be adjudicated upon by the Appellate Authority by going into merits of the case.

7.Accordingly, this Writ petition is dismissed on the sole reason that the petitioner has to avail the alternative remedy of filing an appeal, however, by granting such liberty to the petitioner to file an appeal before the Appellate Authority within a period of 30 days from the date of receipt of a copy of this order. If such an appeal is filed before the Appellate Authority, needless to say that such authority will consider the appeal on merits and in accordance with law without reference to the limitation. No costs.

Sd/- Assistant Registrar(co) /True copy/ Sub AssistantRegistrar To 1.The Commercial Tax Officer, Karur (North) Assessment Circle, Karur.

2.The Appellate Deputy Commissioner (CT), Commercial Tax Building, District Court Campus,Trichy.

+1cc to Mr.R.D.Ganesan, Advocate SR.No.561/16 sm:NGM-SS:Sar II:12.01.2016:2P/4c W.P.(MD)No.114 of 2016 06.01.2016 https://hcservices.ecourts.gov.in/hcservices/