Madras High CourtWP(MD)/22431/2016disposed of

Tvl. Boss Bar, v. The Assistant Commissioner(Ct)

2019-03-26Honourable Mr Justice Abdul Quddhose3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.03.2019

CORAM

THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE W.P.(MD).No.22431 of 2016 and WMP(MD) No.16064 of 2016 Boss Bar Rep.by its Proprietor B.S.Terry ... Petitioner -vsThe Assistant Commissioner(CT) Commercial Tax Department Theni-I ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records, pertaining to the impugned order passed by the respondent in TIN 33375121488/14-15, dated 30.06.2015 and quash the same. For Petitioner : Mr.T.Bashyam For Respondents : Mr. A.Thiyagarajan Government Advocate

O R D E R

The instant writ petition has been filed challenging the order dated 30.06.2015 passed by the respondent in TIN 33375121488/14-15.

2. It is the case of the petitioner that the Tamil Nadu Government brought an amendment to Entries 1 and 2 of the second schedule to the Tamil Nadu Value Added Tax Act (hereinafter referred as "TN VAT Act") vide C.T.R.E.G.O.Ms.No.47/ 27.03.2012 with effect from 01.04.2012. Subsequent to the said notification, the entries 1 and 2 have been amended. By an order dated 31.03.2008 this Court dismissed a batch of writ petitions , challenging the above referred amendment and upheld the validity of the TN VAT Act. Thereafter it was taken up by way of writ appeals and the Honourable Division Bench of this Court dismissed the writ appeals. As against the dismissal of the writ appeals, Special Leave Petitions were filed by the aggrieved parties, including the petitioner herein.

3. In view of the pendency of the Special Leave Petitions, the petitioner sent a reply to the pre revision notice dated 24.04.2015 issued under section 27 of TN VAT Act proposing to revise the assessment, stating that the validity of the amendment is the subject matter of challenge before the Honourable Supreme Court. But in the said reply they did not submit any explanation on the merits of the case.

4. The respondent by the impugned assessment order for the assessment year 2014-15 assessed the tax due from the petitioner at Rs.6,21,458/-. Aggrieved by the impugned order the present writ petition has been filed.

5. Heard Mr. T.Bashyam, learned counsel for the petitioner and Mr.A.Thiyagarajan, learned Government Advocate for the respondent.

6. According to the learned counsel for the petitioner, no personal hearing was afforded to the petitioner before passing the impugned assessment order. Further, it is his case that no adequate explanation was submitted by the petitioner in his reply to the pre revision notice dated 24.04.2015 on merits, but he just informed the respondent that in view of the pendency of the Special Leave Petitions challenging the validity of the amendment made by the Government of Tamil Nadu, the respondent should not proceed with the revision of assessment proceedings. Therefore, according to the learned counsel for the petitioner, the respondent has violated the principles of natural justice by not affording adequate opportunity to the petitioner available to him under law.

7. Per contra, the learned Government Advocate would submit that there is an alternate efficacious remedy available to the petitioner under Section 51 of TN VAT Act and without exercising the same, the petitioner has directly approached this Court , which is not maintainable.

8. As seen from the impugned assessment order, the petitioner has not been afforded the right of personal hearing by the respondent. Further, on merits no explanation was given by the petitioner in his reply to the pre revision notice dated 24.04.2015, but he has simply stated that in view of the pendency of Special Leave Petitions before the Supreme Court challenging the amendment made by the Government of Tamil Nadu, based on which the proposal for revision of assessment has been made, he has not given any explanation on merits. Therefore, as rightly contended by the learned counsel for the petitioner the respondent has violated the principles of natural justice by not affording adequate opportunity to the petitioner and by granting him the right of personal hearing as well as permitting him to raise all his objections available to him under law for the proposed revision of assessment.

9. Considering all the above mentioned factors, this court is of the considered view that that the impugned order dated 30.06.2015 passed by the respondent has to be quashed.

10. In the result, the impugned assessment order dated 30.06.2015 passed by respondent against the petitioner is hereby quashed and matter is remanded back to the respondent for fresh consideration and the respondent shall pass final orders in accordance with law after giving adequate opportunity to the petitioner, to raise all objections available to him under law and the respondent shall pass final orders within a period of eight weeks from the date of receipt of a copy of this Order.

11. With the aforesaid direction, the writ petition is disposed of. No cost. Consequently connected miscellaneous petition is closed.

SD ASSISTANT REGISTRAR TRUE COPY SUB ASSISTANT REGISTRAR aav To:

The Assistant Commissioner(CT) Commercial Tax Department Theni-I 1CC TO MR T. BASHYAM, ADVOCATE SR 56729 KK 4/4/2019 3P 3C W.P.(MD).No.22431 of 2016 26.03.2019