S.M.Traders v. The Commercial Tax Officer
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.07.2016
CORAM:
THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD)No.13276 of 2016 and WMP(MD)No.9970 of 2016 Tvl.S.M.Traders, Represented by its Partner:S.Sethumathi ...Petitioner Vs.
The Commercial Tax Officer, Nethaji Road Circle, Madurai-20.
... Respondent PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the records on the file of the respondent in TIN No.33414981107/2011-2012, dated 06.06.2016 and quash the same as illegal, invalid and against the Principles of Natural Justice. For petitioner :Mr.A.Chandrasekaran For Respondent :Mr.R.Karthikeyan, Additional Government Pleader
O R D E R
********** Tvl.S.M.Traders represented by its Partner Mrs.S.Sethumathi, has filed this Writ Petition challenging the correctness of the impugned final assessment order, dated 06.06.2016 passed by the Commercial Tax Officer, Madurai in TIN NO33414981107/2012-2012. 2.Mr.R.Karthikeyan, learned Additional Government Pleader takes notice for the respondent.
3. No doubt, against that order passed by the Assessing Officer, an appeal will lie before the appellate authority, within thirty days. But the point for consideration in the present Writ Petition is, when the Assessing Officer issues notice proposing to reverse I.T.C along with indication to levy penalty under Section 27(4) of the Tamil Nadu Value Added Tax Act, 2006, as and when the assessee sought for personal hearing to explain their case in respect of several document filed before the Assessing Officer,
the Law says the Assessing Officer has to mandatorily grant personal hearing.
3. In the present case, for the notice, dated 03.03.2016, calling upon the petitioner to submit their reply/objection as to why I.T.C should not be reversed along with levy of penalty, the petitioner had submitted a detailed reply on 24.03.2016. The last paragraph of the reply clearly shows that in equitable terms, she has sought for personal hearing. Therefore, when the petitioner assessee after giving a detailed reply requested the Assessing Officer to provide personal hearing in clear and equitable terms, no-where the Assessing Officer in the final assessment order has turned down the request, that means, he has not applied his mind while deciding the Quasi Judicial function. The respondent ought to have given reason as to why he is not willing to give personal hearing. The reasoning is clearly missing in the present impugned order. It has to be interfered with.
4. Section 27(4) of the TNVAT Act, 2006 is given as under: "27(4) In addition to the tax determined under SubSection(2), the assessing authority shall direct the dealer to pay as penalty a sum- (i) which shall be in the case of first such detection, fifty per cent of the tax due in respect of such claim; and (ii)which shall be in the case of second or subsequent detections, one hundred per cent of the tax due in respect of such claim:
Provided that no penalty shall be levied without giving the dealer a reasonable opportunity of showing cause against such imposition."
5. Section 27(4) of the Act, clearly shows that in addition to the tax determined under Sub-Section(2), the assessing authority shall direct the dealer to pay penalty, provided that no penalty shall be levied without giving the dealer a reasonable opportunity of showing cause against such imposition.
6. This Court has repeatedly in umpteen number of decisions while interpreting Section 27(4) of the Act, including proviso clause, made it clear in equitable terms that reasonable opportunity includes personal hearing.
7. In the present case, as I have mentioned above, in the reply dated 24.03.2016, the petitioner has sought for an opportunity of personal hearing so as to explain the real facts and figures with documentary evidence with a further request to file additional objection if any. Since the petitioner has been denied the personal hearing, this Court is inclined to set aside the impugned order, for not complying with the conditions mentioned in Section 27(4) of the Act.
8.
In the result, this Writ Petition is allowed. Consequently, the impugned order, dated 06.06.2016 passed by the respondent, is set aside and the matter is remitted back to the respondent to consider the case of the petitioner afresh, after giving personal hearing to the petitioner to put forth their case. It is open to the petitioner to file additional document if any. No Costs. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar (W) /True Copy/ Sub Assistant Registrar pm To The Commercial Tax Officer,Nethaji Road Circle, Madurai-20.
+1CC To Mr.A.Chandra Sekaran, Advocate Sr.No.39669 GJM/KBM/12.8.16-3p-3c W.P.(MD)No.13276 of 2016 27.07.2016