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2006 DIGILAW 2285 (MAD)

Tvl. Rainbow Leathers v. The Deputy Commercial Tax Officer-II (FAC), Dindigul

2006-09-05

K.VENKATARAMAN

body2006
Judgment :- 1. By consent, the Writ Petition itself has been taken up for final disposal. 2. Heard Mr. D. Radhakrishnan, learned counsel for the petitioner and Mr. Pala Ramasamy. learned Special Government Pleader appearing for the respondent. 3. The petitioner is a dealer in hides and skins. For the assessment year 2002-03 (TNGST). the petitioner reported a total and taxable turnover of Rs.2,64,28,541 and Rs.4.000 in their regular monthly returns. After verification of the petitioner's books of accounts, the respondent accepted the same and passed an order of assessment. The further case of the petitioner is that subsequently on 4.3.2005, the respondent issued a pre-revision notice for the year 2002-03 (TNGST) and passed the revised order of assessment. The reason stated for the proposed revision was that the petitioner had effected purchase of Tanned Hides from three dealers to the tune of Rs.52,33,917 and claimed second sales exemption but the said three dealers' registration had been cancelled. Thus, the respondent proposed to determine the petitioner's taxable turnover at Rs.54,74,096 and levy tax @ 4% as against the reported taxable turnover of Rs.4,000 and also to levy penalty @ 150% on the tax due proposed to be assessed under Section 16(2) of the TNGST Act, 1959 (hereinafter referred to as ‘The Act'). 4. The petitioner has caused a reply to the said pre-revision notice on 22.3.2005, wherein he has stated that the dressed skin is under Item 7(b) of the Second Schedule of the Act. As far as the Second Schedule goods are concerned, the proviso clause to Section 3(2) of the Act is not applicable. Only First Schedule goods can be made liable under the proviso clause to the Section 3(2) of the Act which enables the Assessing Officer to levy tax on the earliest of the successive dealer. Further, it has been submitted in the said reply that as far as the Second Schedule goods are concerned, there is no levy of tax on the earliest of the successive dealer and as such no tax can be levied on such turnover. 5. Further, it has been submitted in the said reply that as far as the Second Schedule goods are concerned, there is no levy of tax on the earliest of the successive dealer and as such no tax can be levied on such turnover. 5. Learned counsel for the petitioner has submitted that in spite of the detailed reply, the respondent, without considering the same and in total disregard to the provisions of the Proviso to Section 16(1) of the Act that sufficient opportunity has been given to the dealer before passing the impugned order under Section 16(1) of the Act, has revised the order of assessment dated 15.11.2005. According to the learned counsel for the petitioner, the said order dated 15.11.2005 was served on the petitioner only on 7.12.2005. 6. Learned counsel appearing for the petitioner has drawn my attention to the order dated 15.1L2005. In the said order, all the contentions of the petitioner have been extracted and in the last portion of the order, it has been stated as follows: "The objections are carefully examined and they are not found acceptable. Hence, the objections are overruled, and the assessment is revised as under". By pointing out the said order dated 15.11.2005, the learned counsel for the petitioner states that though the petitioner has specifically contended that the dressed skins are the Second Schedule goods, the proviso clause to Section 3(2) of the Act will not apply but only the First Schedule goods can be made liable under the Proviso clause to Section 3(2) of the Act, which enables the Assessing Officer to levy tax on the earliest of the successive dealer, the impugned order has been passed mechanically without considering such reply. When a specific plea has been raised by the petitioner, the order passed by the respondent without considering the same is not sustainable. In the absence of any reason for rejecting the objections in the impugned order, the effective remedy of Appeal provided under the statute would be defeated as the petitioner cannot have any ground to question the order before the Appellate Authority. Though time and again this Court has held in several cases that the Authorities vested with powers to exercise their rights under statute has to assign reasons for their conclusion, unfortunately, it is not followed by Authorities which creates scope for approaching Courts seeking redressal. 7. Though time and again this Court has held in several cases that the Authorities vested with powers to exercise their rights under statute has to assign reasons for their conclusion, unfortunately, it is not followed by Authorities which creates scope for approaching Courts seeking redressal. 7. This Court also had an occasion to deal with a similar matter in W.P. No. 3427 of 2005 wherein the order of revised assessment has been set aside holding that no reasons have been given in the order. Hence, the impugned order has no legs to stand. The impugned order of the respondent dated 15.11.2005 is set aside and the Writ Petition is allowed. However, it is open to the respondent to consider the objections of the petitioner and pass fresh orders after considering the objections. 8. At this juncture, the learned counsel for the petitioner submits that third party records have been relied upon by the respondent while passing the impugned order dated 15.11.2005 and though the petitioner made a request for the copy of the same, it has not been furnished to the petitioner. If the respondent relies upon the third parties' records, it is incumbent on the part of the respondent to furnish the said copies to the petitioner so as to enable him to submit his explanation. Hence, the respondent is also directed to furnish the Xerox copy of the third party records, which have been relied upon by the respondent, to the petitioner in case if he intends to pass orders afresh. 9. Accordingly, this Writ Petition is allowed setting aside the impugned order of the respondent dated 15.11.2005 as indicated above. Consequently, W.P.M.P. No. 202 of 2006 is closed.