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2004 DIGILAW 242 (MAD)

TVL. Kwality Granites and Marbles Madurai v. The Registrar, Tamil Nadu Taxation Special Tribunal & Another

2004-02-19

N.V.BALASUBRAMANIAN, V.KANAGARAJ

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Judgment :- N.V.Balasubramanian, J. Writ Petition praying to issue a Writ of Certiorarified Mandamus to call for the records and quash the order dated 21.1.2004 made in O.P.No.101/2004 passed by the first respondent as illegal, arbitrary and direct the second respondent to furnish the D7 records seized from the petitioner premises on 14.9.2001 and also to furnish the annexures to the pre-assessment notice before passing any orders. 2. Heard the learned counsel for the petitioner and the learned Special Government Pleader (Taxes) on notice. With the consent of the counsel for both parties, the writ petition is taken up for hearing. 3. The case of the petitioner is that there was an inspection by the Enforcement Wing Authority at the business premises of the petitioner on 14.9.2001 and at the time of inspection, certain documents were seized by the said authority which are found in D7 records. A pre-assessment notice dated 4.7.2003 was issued by the second respondent, assessing officer to the petitioner, and the petitioner made a request to the second respondent to supply him the copies of D7 records at the petitioner's cost so as furnish his reply to the pre-assessment notice. However, the assessing officer did not furnish the copies of D7 records which contain 62 slips seized from the petitioner on the ground that the petitioner had appeared before the Enforcement Wing, wherein he was allowed to peruse the entire records at the time of inspection and further that the petitioner himself has submitted his explanation regarding the 62 slips seized from him to the Inspection Wing and completed the assessment. 4. The petitioner filed a petition before the first respondent, the Taxation Special Tribunal and the Special Tribunal also refused to interfere with the order of assessment on the ground that the petitioner had appeared before the Enforcement Wing Officer and perused the D7 records and has given his explanation for the 62 slips to the said Officer and has also obtained a copy of the statements given by him. The Special Tribunal found that since the Inspection Wing had recorded the statement of the assessee, the opportunity already granted by the Enforcement Wing Officer to peruse the D7 records would be sufficient and the non-furnishing of the copies of the D7 records by the assessing officer would not vitiate the order of assessment and thus dismissed the petition filed by the assessee. 5. 5. We find that the order of Special Tribunal as well as the order of the Assessing Officer are not sustainable as admittedly the Enforcement Wing has seized the 62 slips from the assessee's premises and they were in the possession of the Enforcement Wing. Later, these records were transferred to the assessing authority. The Enforcement Wing and the Assessment Wing are different. The mere fact that the assessee was given the opportunity for perusing the D7 records by the Enforcement Wing Officer would not be sufficient compliance of the principles of natural justice by the assessing officer as the assessee requested the assessing officer to furnish the copies of the D7 records at his cost so that he could reply to the pre-assessment notice after the D.7 records came into the hands of the assessing officer for the purpose of making assessment. We find that the view of the Assessing Officer that it is not necessary for him to furnish the copies of the said documents is not sustainable as without these copies, the assessee may not be in a position to give his effective reply to the pre-assessment notice. Further, the Assessing Officer has relied upon those documents to arrive at the taxable turnover of the assessee. Since the petitioner was prevented from sending his effective reply to the pre-assessment notice, we hold that the order of assessment impugned in the writ petition was made in violation of the principles of natural justice and therefore it is liable to be quashed. 6. We are not able to sustain the findings of the Special Tribunal to the effect that it is not necessary to furnish the copies of the documents which were relied upon by the Assessing Officer. The fact that the Enforcement Wing Officer had granted an opportunity to the petitioner to peruse the seized documents is immaterial as it is not the case of the respondents that the copies were furnished to the petitioner by the said authority at an earlier stage. We are of the view that the assessing officer should have furnished the copies of the documents after collecting the necessary fees from the assessee. It is the petitioner's assessment; it is the assessment of his turnover on which he would be liable to pay tax. We are of the view that the assessing officer should have furnished the copies of the documents after collecting the necessary fees from the assessee. It is the petitioner's assessment; it is the assessment of his turnover on which he would be liable to pay tax. Hence, he must be in a position to give his reply to the notice as he felt that without the copies, it may not be possible to give the reply. Hence, the order of assessment made in the petitioner's case for the year 2001-2002 under the Tamil Nadu General Sales Tax Act passed against the petitioner was made in violation of the principles of natural justice and is liable to be quashed and accordingly it is quashed. In the result, this writ petition stands allowed and the matter is remitted back to the second respondent, viz., the Commercial Tax Officer, Tallakulam Assessment Circle, Madurai. The second respondent herein is directed to complete the assessment as early as possible after complying with the principles of natural justice. No costs. Consequently, WPMP No.3590 of 2004 is closed.