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2015 DIGILAW 1704 (MAD)

J. K. Pharamacy, rep. by its Proprietor v. The Assistant Commissioner [CT]

2015-03-30

B.RAJENDRAN

body2015
Order 1. As the issues involved in both the Writ Petitions are common with a challenge to the very same impugned order, but for the different assessment years, they have been taken up together and dealt with by a Common Order. 2. Challenge in these Writ Petitions is to the order dated 23.01.2015 passed by the respondent herein. 3. The only grievance of the petitioner is that even though the petitioner has submitted physical returns, the authority concerned has passed the impugned orders on the ground that no returns have been filed. He would further contend that the authority concerned has not taken into consideration the very submission of the documents. Furthermore, under Section 22(4) of the Tamil Nadu Value Added Tax Act, 2006, there is a mandatory provision that before passing such an order, an opportunity of being heard has to be provided to the dealer concerned. However, in the case on hand, before passing the impugned orders, no opportunity of hearing has been given to the petitioner. In support of his contention, the learned counsel, relying upon an order of this Court dated 28.03.2014, made in W.P.[MD].No.16170 of 2013, would contend that in similar circumstances, this Court, taking into consideration of the fact that before passing the impugned orders, no opportunity of hearing was given to the petitioner therein, quashed the impugned order and remitted the matter back to the authority concerned for fresh consideration, after affording opportunity of personal hearing. The learned counsel, therefore, would submit that the impugned orders are liable to be set aside. Further, in order to show his bona fide, the petitioner is ready to deposit 15% of the tax disputed amount. 4. On the other hand, the learned Government Advocate appearing for the respondent would vehemently contend that even though pre-assessment notice was issued for which no objection has been filed by the petitioner. Thereafter, the authority concerned has passed the impugned orders, which do not call for any interference by this Court. 5. I have considered the above submissions and perused the records carefully. 6. It is an admitted fact that the petitioner has filed physical returns and not 'E' return. A plain reading of the impugned orders would show that before passing the impugned orders, the petitioner was not given opportunity of hearing, as contemplated in Section 22(4) of the Tamil Nadu Value Added Tax Act, 2006. 6. It is an admitted fact that the petitioner has filed physical returns and not 'E' return. A plain reading of the impugned orders would show that before passing the impugned orders, the petitioner was not given opportunity of hearing, as contemplated in Section 22(4) of the Tamil Nadu Value Added Tax Act, 2006. Thus, on the sole ground, the impugned orders are liable to be quashed. Moreover, in an identical circumstance, this Court in W.P.[MD].No.16170 of 2013, dated 28.03.2014, considered a similar issue and quashed the impugned order. The relevant portion is extracted below:- “4. The learned counsel for the petitioner has submitted that the impugned proceedings has been passed without giving an opportunity of personal hearing to the petitioner. In this regard, the learned counsel for the petitioner drew the attention of this Court to Section 22(4) of the Tamil Nadu Value Added Tax Act, 2006, and submitted that under the proviso to Section 22(4), the dealer shall be given a reasonable opportunity of being heard, before passing the order. 5. The learned counsel for the respondent submitted that a Pre-Revision Notice was issued on 14.06.2013 for which the petitioner has sent a reply on 26.06.2013. Thereafter the respondent has sent a further notice on 15.07.2013, for which the petitioner has replied on 26.07.2013. The learned counsel for the respondent submits that by considering the replies given by the petitioner only, the impugned order has been passed. 6. Taking into consideration the facts and circumstances of the case, in the interest of justice, this Court is of the opinion that it would be appropriate to remit back the matter to the respondent by setting aside the impugned proceedings. Accordingly, the impugned proceedings of the respondent is set aside and the matter is remitted back to the respondent herein. The respondent is directed to give opportunity of personal hearing to the petitioner and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order.” 7. Accordingly, the impugned proceedings of the respondent is set aside and the matter is remitted back to the respondent herein. The respondent is directed to give opportunity of personal hearing to the petitioner and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order.” 7. In such view of the matter, the impugned orders, dated 23.01.2015, passed by the respondents are set aside, subject to the condition that the petitioner shall deposit 15% of the tax demanded in the order, in each case, with the respondent, within a period of fifteen days from the date of receipt of a copy of this order and the matter is remitted back to the respondent, who shall give opportunity of personal hearing to the petitioner and thereafter pass appropriate orders, within a period of four weeks from the date of such deposit. 8. The Writ Petitions are disposed of, as indicated above. No costs. Consequently, connected Miscellaneous Petitions are closed.