Prayer: The writ petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records on the file of the 2nd respondent in TIN.No.33902741447/2010-11,TIN.No.33902741447/2011-12, TIN. No.33902741447/2012-13,TIN.No.33902741447/2013-14,TIN.No. 33902741447 / 2014-15 dated 08.09.2017 and quash the same and render justice.
Heard Mr.R.Senniappan learned counsel for the petitioner and Mr. K.Venkatesh, learned Government Advocate accepting notice on behalf of the respondents. In the light of the fact that the impugned orders have been challenged on the ground that they are in violation of the legal principles laid down by this Court in several decisions and the orders have been passed in violation of principles of natural justice, the writ petitions are taken up for disposal at the admission stage.
2.The petitioner is a registered dealer on the file of the first respondent under the provisions of the Tamil Nadu Value Added Tax Act 2006. On 30.04.2015, the predecessor officer issued revision notices for the assessment years 2012-13 to 2014-15. The notices appear to have been issued pursuant to a report given by the Enforcement Wing Officials, who conducted an inspection in the petitioner place of business on 03.02.2015, 27.03.2015 and 31.03.2015. The allegation against the petitioner is on account of mismatch between the purchases effected and Annexure-II of the other end dealer. The details have been culled out from the website of the Department. The petitioner was granted 15 days time to submit their explanations. The petitioner submitted their explanations on 20.7.2015.
With regard to the allegation of mismatch, the petitioner pointed out that if the selling dealer has not reported their turnover and paid tax, the petitioner cannot be blamed. To support such an stand, the petitioner placed reliance on the judgments reported in the cases of
(i) [(2012) 50 VST 179 (MAD.)] Althaf Shoes (p) Ltd., Vs. Assistant Commissioner (CT), Valluvarkottam Assessment Circle, Chennai.
(ii) (2013) 60 VST 283 (MAD.) (Sri Vinayaga Agencies Vs. Assistant Commissioner (CT), Vadapalani-I Assmt. Circle, Chennai and another and
(iii) W.P.No. 9265 of 2014 dated 06.11.2014 ( Infinity whole sale Ltd., Assistant Commissioner (CT), Koyambedu Assessment Circle, Chennai 107.
3.With regard to the other allegations, the petitioner submitted that he is at a loss to understand how the conclusion can be arrived at that there was a suppression without perusal of the books of accounts and the entire purchase and sales records. Therefore, the petitioner requested the first respondent to call for the records so that the petitioner can produce the same and show all the relevant entries to disprove the allegation made against the petitioner in the revision notice dated 30.04.2015.
4.The other allegations relating to purchase based on verification of the purchase bills along with check post details, the petitioner denied the allegation and requested the first respondent to furnish the check post details so that they will be in a position to submit their objections. Thus, the petitioner contended that in the absence of records, the question of concluding that there was a suppression does not arise and no penalty can be levied.
5.It is not known as to why the predecessor officer, who was the then Assessing Officer did not complete the assessment though the petitioner had immediately submitted their objections. The matter was left unattended for more than one year and another notice was issued by the second respondent on 13.10.2016 for the assessment years 2010-11 and 2011-12. Subsequently, another notice was issued by the second respondent on 14.11.2016 covering the period from 2010-11 to 2014-15.
6.The petitioner submitted their objections on 07.12.2016 reiterating their request made in the earlier reply seeking copies of all the records and documents and on receipt of the same, undertook to file a reply within 7 days from the said date. However, no communication was received from the respondents. But, another notice dated 13.06.2017 was issued by the second respondent directing the petitioner to appear for a personal hearing before the second respondent. The petitioner appeared for the personal hearing and reiterated their request, since, by then, the officer had changed and the present Assessing Officer has taken charge.
7.The petitioner is stated to have requested the second respondent to furnish all the records and documents and afford them a reasonable opportunity to file their objections. However, the second respondent has not referred to the notice dated 06.07.2017 in the impugned assessment orders and completed the assessments stating that the petitioner has not given proper reply and has only referred to the decisions of this Court.
8.It is rather unfortunate that the second respondent did not go through the reply dated 20.07.2015, though she made a reference in the assessment orders in reference column No:3. The petitioner relied upon the decision of this Court to show that the second respondent cannot draw an adverse inference merely because the selling dealer has not filed returns and paid taxes. In any event, the second respondent should have furnished the records to the petitioner because the revision of the assessments is based upon the verification done from the Departmental website.
9.Similar cases were dealt with by this Court and a decision has been taken in the case of JKM Graphics Solutions Private Limited Vs. CTO, Vepery Assessment Circle [reported in (2017) 99 VST 343]. In the said decision, this Court indicated certain guidelines as to how the assessment should have proceeded in cases where the revision is based on details culled out upon verification of the Departmental website. Therefore, the second respondent, being a new officer, should have afforded an opportunity to the petitioner especially when the revision notices were issued in the year 2015. Thus, this Court is unable to approve the manner, in which, the impugned assessments have been completed.
10.For the above reasons, the writ petitions are allowed, the impugned orders are set aside and the matters are remitted back to the second respondent for a fresh consideration. The second respondent shall direct the petitioner to appear before her and furnish all details as sought for by them, after which, the petitioner should be given a reasonable time to submit further objections. After receiving the further objections, the second respondent shall once again afford an opportunity of personal hearing and re-do the assessments in accordance with law. No costs. Consequently, the connected miscellaneous petitions are closed.
24.11.2017 smn Index:Yes/No Internet:Yes/No Speaking order/Non-speaking order T.S.SIVAGNANAM,J smn To.
1. The Assistant Commissioner (CT) Shevapet (North)Assessment Circle, Shevapet.
2. The Assistant Commissioner (CT) (FAC) Shevapet ( North) Assessment Circle, Salem.
Writ Petition Nos.30305 to 30309 of 2017 & W.M.P.Nos.33039 to 33043 of 2017 24.11.2017