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2011 DIGILAW 3602 (MAD)

TVL. REGAVENDRA LEATHERS v. DEPUTY COMMERCIAL TAX OFFICER - III, DINDIGUL

2011-08-08

VINOD K.SHARMA

body2011
ORDER The petitioner has approached this court, with a prayer, for issuance of a writ, in the nature of certiorari, to quash the order of assessment, dated 23.02.2007, being in violation of principles of natural justice, and also contrary to second proviso to section 3(2), and section 16 of the Tamil Nadu General Sales Tax Act, 1959. The petitioner is dealer in Hides and Skins. For the Assessment year 2003-04, the petitioner reported a total taxable turnover of Rs. 1,54,040,391/- [Rupees one crore fifty four lakhs forty thousand three hundred and ninety one only] and Rs. 6,69,150/- [Rupees Six lakhs sixty nine thousand one hundred and fifty only] respectively and paid the tax due. The book of accounts of the petitioner were accepted and an order of assessment was passed on 28.11.2005. On 23.01.2007, the respondent issued a pre-revision notice, proposing to reopen the completed assessment for the year 2003-04 and to pass revised order of assessment. The petitioner filed objection to the show cause notice and requested the respondent to supply the materials, on the basis of which, the assessment was proposed to be revised. The Assessing Authority, vide impugned order, revised the assessment, without giving an opportunity of hearing to the petitioner or supplying the materials, on the basis of which the assessment was revised. In support of this prayer, the learned counsel for the petitioner placed reliance on the judgment of this court in W.P. No. 198 of 2006, [Tvl. Rainbow Leathers, rep, by Proprietor Noor Mohamed v. The Deputy Commercial Tax Officer - II (FAC), Dindigul], decided on 5.09.2006, wherein this court was pleased to lay down as under :- "6. Learned counsel appearing for the petitioner has drawn my attention to the order, dated 15.11.2005. 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". 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 the 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. 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." The case of the petitioner is squarely covered by the decision of this court, as the assessment order in the case of petitioner also has been revised, in violation of provision of the Act, and principle of natural justice. Consequently, the writ petition is allowed, the impugned order of revised assessment is ordered to be set aside, with liberty to the respondent to pass fresh orders, after complying with the principles of natural justice and supplying necessary materials forming basis for review to the petitioner. Connected Miscellaneous Petition is closed. No costs.