This writ petition has been filed praying for a Writ of Certiorari, to call for the records on the file of the respondent, in TIN No.33485822301/08-09, dated 9.10.2009 and quash the same.
2. It has been stated that the petitioner is a civil contractor and an assessee, on the files of the respondent, with TIN No.33485822301. It has been stated that the respondent had issued a notice, on 25.6.2009, stating that on verification of the check post bills, received with the return and annexure-I filed by the petitioner, it was found that the petitioner had not disclosed the purchase of fabrication materials from M/s.Kirby Building Systems India Ltd., Pashamyleram, Medak District, vide invoice No.2785, dated 30.8.2008, and hence, the respondent had proposed to determine the sale value of transfer of property and also to levy penalty, according to the provisions of the Tamil Nadu Value Added Tax Act, 2006. On receipt of the said notice, the petitioner, by a letter, dated 10.7.2009, had stated that the invoice No.2785, dated 30.8.2008, relied on by the respondent, was only an excise invoice and not a commercial invoice. It had also been stated that the total value of the invoice was high and the material status was huge in quantity. Hence, the petitioner had moved the goods in a separate excise invoice on different dates and through various transporters. On completion of the total delivery and after the receipt of the commercial bill, the total purchases were taken into account. On receipt of the commercial invoice during the month of March, 2009, from the supplier, the transaction was immediately accounted for in the accounts. The petitioner had also stated that the materials purchased were only supporting materials, used at the time of concrete plastering for the wall, upto the roof level, during construction and that they were not for sale. The petitioner had also requested 20 days time to submit their further explanation and the petitioner had also prayed for a personal hearing to explain the details, in respect of the said issue. However, the respondent had passed the impugned order, dated 9.10.2009, without considering the explanation submitted by the petitioner.
3. Even though various grounds had been raised in support of the writ petition, the learned counsel for the petitioner had submitted that it would suffice if the impugned order of the respondent, dated 9.10.2009, is set aside and if the respondent is directed to pass appropriate orders, after considering the explanation, dated 24.9.2009, submitted by the petitioner and after giving an opportunity of personal hearing to the petitioner.
4. The learned counsel appearing on behalf of the respondent had submitted that even though it is stated that the explanation, dated 24.9.2009, is said to have been submitted by the petitioner to the respondent, the respondent had not received the explanation, as alleged by the petitioner. Further, the petitioner has an alternative remedy by way of a revision before the Joint Commissioner, Commercial Taxes, Tirunelveli. However, in view of the limited prayer made by the learned counsel for the petitioner, the learned counsel appearing on behalf of the respondent has no objection for this Court setting aside the impugned order of the first respondent and remitting the matter back to the respondent, who is the assessing authority, to reconsider the issue, in respect of the value added tax and penalty to be recovered from the petitioner, in respect of the fabrication materials, said to have been transported by the petitioner, for the month of August, 2008, taking into account the explanation, dated 24.9.2009, submitted by the petitioner. Further, he had also insisted that the petitioner shall deposit a sum of Rs.5 lakhs, which is approximately 25% of the tax component due from the petitioner.
5. In view of the averments made by the learned counsels appearing on behalf of the petitioner, as well as the respondent, the impugned order of the respondent, dated 9.10.2009, is set aside, on condition that the petitioner deposits a sum of Rs.5 lakhs (five lakhs) before the respondent, within ten days from today. On the petitioner depositing the said amount, the respondent shall reassess the tax, as well as the penalty to be paid by the petitioner, in respect of the fabrication materials transported in the month of August, 2008, taking into account the explanation, dated 24.9.2009, said to have been submitted by the petitioner and after affording an opportunity of personal hearing to the petitioner and pass appropriate orders afresh, within a period of four weeks, from the date of such deposit. Accordingly, the writ petition is disposed of with the above directions. No costs. Consequently, connected M.P. is closed.
csh To The Assistant Commissioner (CT)-I (FAC), Thoothukudi.