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Madras High CourtWP(MD)/13318/2016disposed of

M/S.Amman Steel Corporation v. The Assistant Commissioner(Ct)

2016-07-29Honourable Mr Justice T.Raja5 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.07.2016

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA W.P(MD).Nos.13318 to 13323 of 2016 and W.M.P.(MD).Nos.9996 to 10001 of 2016 M/s.Amman Steel Corporation, represented by its Authorised Signatory R.Usha, No.25/7, Kajapet Main Road, Trichirappalli.

..Petitioner in all petitions Vs.

The Assistant Commissioner(CT), Palakkarai II Assessment Circle, Commercial Taxes Buildings, Trichy.

..Respondent in all petitions Prayer in W.P(MD).Nos.13318 of 2016:

Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to call for the records on the file of the respondent in TIN 33373540097/2009-10, dated 14.06.2016 and to quash the same as illegal, arbitrary and in violation of the principles of natural justice, and direct the respondent to pass assessment order afresh after affording an opportunity of being heard to the petitioner by considering the replies dated 18.04.2016 filed by the petitioner within such time may be directed by this Court. Prayer in W.P(MD).Nos.13319 of 2016:

Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to call for the records on the file of the respondent in TIN 33373540097/2010-11, dated 15.06.2016 and to quash the same as illegal, arbitrary and in violation of the principles of natural justice, and direct the respondent to pass assessment order afresh after affording an opportunity of being heard to the petitioner by considering the replies dated 18.04.2016 filed by the petitioner within such time may be directed by this Court.

Prayer in W.P(MD).Nos.13320 of 2016:

Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to call for the records on the file of the respondent in TIN 33373540097/2011-12, dated 23.06.2016 and to quash the same as illegal, arbitrary and in violation of the principles of natural justice, and direct the respondent to pass assessment order afresh after affording an opportunity of being heard to the petitioner by considering the replies dated 13.04.2016 and 18.04.2016 filed by the petitioner within such time may be directed by this Court.

Prayer in W.P(MD).Nos.13321 of 2016:

Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to call for the records on the file of the respondent in TIN 33373540097/2012-13, dated 23.06.2016 and to quash the same as illegal, arbitrary and in violation of the principles of natural justice, and direct the respondent to pass assessment order afresh after affording an opportunity of being heard to the petitioner by considering the replies dated 13.04.2016 and 18.04.2016 filed by the petitioner within such time may be directed by this Court.

Prayer in W.P(MD).Nos.13322 of 2016:

Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to call for the records on the file of the respondent in TIN 33373540097/2013-14, dated 24.06.2016 and to quash the same as illegal, arbitrary and in violation of the principles of natural justice, and direct the respondent to pass assessment order afresh after affording an opportunity of being heard to the petitioner by considering the replies dated 15.04.2016 and 18.04.2016 filed by the petitioner within such time may be directed by this Court.

Prayer in W.P(MD).Nos.13323 of 2016:

Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to call for the records on the file of the respondent in TIN 33373540097/2014-15, dated 24.06.2016 and to quash the same as illegal, arbitrary and in violation of the principles of natural justice, and direct the respondent to pass assessment order afresh after affording an opportunity of being heard to the petitioner by considering the replies dated 13.04.2016 and 18.04.2016 filed by the petitioner within such time may be directed by this Court.

For petitioner : Mr.N.Sudalai Muthu for M/s.S.Karunakar in all petitions For Respondent : Mr.R.Karthikeyan Additional Government Pleader in all petitions

ORDER

M/s. Amman Steel Corporation represented by its authorised signatory R.Sudha has filed these writ petitions challenging the Assessment Orders issued by the Assistant Commissioner (CT), Palakkarai II Assessment Circle, Trichy for the years 2009-10 to 2014-15, contending inter alia, the impugned orders have been passed in violation of the principles of natural justice, without even considering the request made by the petitioner for a personal hearing. It is stated that this Court repeatedly held that when a request for personal hearing is made, the Assessing Officer is duty bound to provide the same as per Section 27(4) of the TNVAT Act. In the present case, when the notices, dated 24.03.

2016, were issued calling upon the petitioner to submit detailed objections/replies, on receipt of the said notices, the petitioner submitted replies to the abovesaid notices dated 13.04.2016. Also, vide letter dated 18.04.2016, the petitioner requested to provide them an opportunity of personal hearing. Despite receipt of the petitioner's replies and also their request to provide personal hearing, conveniently, the respondent ignored the same, hence, the petitioner has come to this Court.

2.Learned counsel for the petitioner would submit that a careful reading of the proviso to Sections 27(2) and 27(4) of the TNVAT Act, shows that no order shall be passed under sub-sections

(1) and (2), without giving the dealer a reasonable opportunity to show cause against such order and no penalty shall be levied without giving the dealer a reasonable opportunity of showing cause against such imposition. In the present cases, when notices, dated 24.03.2016, were issued for the Assessment years 2009-10 to 2014-15, with a proposal to levy penalty under Section 27(4) of TNVAT Act, 2006, the petitioner has submitted detailed replies dated 13.04.2016, but, even after receiving those replies, the respondent ignored the further request of the petitioner, dated 18.04.2016, to give personal hearing and wrongly proceeded on the basis of a defect pointed out during the previous Audit conducted on 02.12.2014. Adding further, he would submit that when the Audit took place between 02.12.2014 and 06.12.2014 at the business place of the petitioner, several discrepancies were highlighted by the Audit Wing officials, which

were properly replied by the petitioner, however, the same was not considered by the Audit Authority. They refused to verify the records produced by the petitioner stating that whatever the records, the petitioner is having, can be produced before the Assessing Authority, while making reference. For all the discrepancies indicated by the Audit Wing officials, an exhaustive reply/objection was prepared and submitted, but the Assessing officer has passed the proceedings merely based on the discrepancies highlighted by the Audit Wing officials and refused to consider the valid objections raised by the petitioner. It is further submitted that, in spite of a specific request to provide personal hearing, the respondent overlooked the same and hurriedly passed the impugned orders, therefore, the same are liable to be set aside.

2.1. Adding further, he would submit that since the impugned orders passed are in violation of Sections 27(2) and 27(4) of the TNVAT Act, by not affording an opportunity of personal hearing to the petitioner, the same may be set aside and the matter may be remanded to the file of the respondent to pass fresh orders after hearing the petitioner.

3.Mr.R.Karthikeyan, learned Additional Government Pleader appearing for the respondent, would submit that the six Notices, dated 24.03.2016, were issued to the petitioner for six Assessment years from 2009-10 to 2014-15, giving them 15 days time to submit their reply. It is the admitted case of the petitioner that after receipt of the notices on 01.04.2016, the reply was not sent within 15 days, but only on 18.04.2016. 4.But, this Court is of the view that when both the replies given by the petitioner, dated 13.04.2016 and 18.04.2016, were taken on the file of the respondent, it is not known what prevented them to apply the mandatory provision, directing the Assessing Officer to provide personal hearing to the petitioner, as per the proviso of Sections 27(2) and 27(4) of the Act.

Admittedly, in the present cases, in my considered view, the respondent has committed an error in not following the said proviso, which mandates the respondent to provide personal hearing. In that view of the matter, the impugned order is set aside and the matter is remanded to the respondent to provide personal hearing to the petitioner and after hearing the petitioner, the respondent shall pass a speaking order. The petitioner is directed to appear before the respondent on 26.08.2016 and it is open for the petitioner to raise all objections. It is needless to mention that the respondent shall consider the issue without being influenced by any of the Audit objections.

5. With the above directions, these writ petitions are disposed of. Consequently connected miscellaneous petitions are closed. No Costs.

Sd/ Assistant Registrar(AS) /TRUE COPY/ Sub Assistant Registrar To The Assistant Commissioner(CT), Palakkarai II Assessment Circle, Commercial Taxes Buildings, Trichy.

+6cc to M/S.S.KARUNAKAR, Advocate in SR.No.40922 to 40297 W.P(MD).No.13318 to 13323 of 2016 29.07.2016 PJL PA/SS3/SAR W/23.08.2016/5P/8C(IT)