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2014 DIGILAW 1182 (MAD)

Medihauxe International v. Assistant Commissioner

2014-06-06

B.RAJENDRAN

body2014
Judgment 1. By consent, the Petitions are taken up for final disposal at the time of admission itself. 2. Heard, Mr. V. Sundareswaran, learned Counsel appearing for the petitioner and also Mr. Kanmani Annamalai, learned Additional Government Pleader (Taxes), who has taken notice on behalf of the respondent. 3.The petitioner has come up with these Writ Petitions challenging the impugned orders dated 01.7.2013 and 30.5.2014 on the ground of violation of principles of natural justice. 4. The petitioner, who is a registered dealer, purchased drugs from M/s. Merck Limited, Mumbai for sale to Regional Cancer Centre, Trinvandrum. The petitioner is also maintaining records to prove that the medicines were sold interstate. The petitioner had not availed any input tax credit under the Tamil Nadu Value Added Tax, 2006. Whileso, on 01.4.2011, M/s. Medihauxe international P. Limited, a company incorporated under the companies Act, took over the petitioner. That being so, the respondent had vide notice dated 12.4.2013 proceeded to make assessment under Section 27 of the Act for reversal of input tax credit. The respondent also issued Garnishee notice to M/s. Medihauxe International Pvt. Ltd and the impugned orders dated 01.7.2013 to the petitioner. Challenging the same, the petitioner is before this Court. 5. The learned counsel for the petitioner would contend that since the petitioner has not availed the Input tax credit on the inter-state purchase of drugs, there is no question of filing “C” declaration forms. The learned counsel for the petitioner would further contend that after the deemed assessment, the petitioner has also remitted the differential rate of tax for the non submissions of declaration Forms. It is the submission of the learned counsel for the petitioner, no personal hearing as contemplated under the Act was granted to the petitioner before passing the impugned order. According to him, if an opportunity was given to the petitioner, he would have clearly proved his case beyond reasonable doubt. Therefore, the impugned order isper se illegal and non est in the eye of law. 6. The learned Additional Government Pleader appearing for the respondent fairly submitted that since the petitioner has not produced the Declaration Form in Form-C , the respondent has passed the impugned orders. Therefore, the impugned order isper se illegal and non est in the eye of law. 6. The learned Additional Government Pleader appearing for the respondent fairly submitted that since the petitioner has not produced the Declaration Form in Form-C , the respondent has passed the impugned orders. However, the learned Additional Government Pleader fairly submitted that since the opportunity of personal hearing was not given to the petitioner, a matter may be remitted back to the respondents to consider the matter afresh. 7. I have considered the above submissions. 8. In view of the submission made by the learned Additional Government Pleader appearing for the respondent and also the fact that the petitioner has paid the differential tax amount, I am of the view that the impugned orders dated 01.7.2013 are liable to be quashed. 9. In the result, the Writ Petition Nos. 14632 and 14632 of 2013 are allowed and the impugned orders dated 01.7.2013 of the respondent, are set aside. The matters are remitted back to the respondent for fresh consideration. Accordingly, the respondent is directed to issue fresh notice to the petitioner and thereafter shall pass a speaking order afresh, after giving an opportunity of personal hearing to the petitioner, on merits and in accordance with law, as expeditiously as possible. The petitioner is also directed to pay 10% of the amount demanded by the respondent in respect of the assessment years 2007-2008 and 2008-2009 within a period of two weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petitions are closed. No costs. 10. Insofar as WP.No.14634 of 2014 is concerned, from the materials available on record, it is seen that the impugned bank attachment notice dated 30.5.2014, which was issued to M/s. Medihauxe International Pvt. Ltd., is subsequent to the taking over of the petitioner company. In view of the fact that the orders dated 01.7.2013 have been quashed in other writ petitions and also the fact that the impugned attachment notice was issued subsequently, I am of the view that the impugned attachment notice is liable to be quashed. Accordingly, the impugned attachment notice dated 30.5.2014 is quashed and the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed. However, it is open to the respondent to proceed against the petitioner in accordance with law.