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Madras High Court · body

2015 DIGILAW 2450 (MAD)

M. Sahul Hameed v. Commissioner of Commercial Taxes, Office of the Principal and Special Commissioner of Commercial Taxes, Ezhilagam, Chepauk

2015-07-09

R.MAHADEVAN

body2015
ORDER This writ petition is filed seeking a writ of Certiorarified Mandamus to call for the records pertaining to the impugned proceedings of the second respondent in TIN.33495702258/2013-14, dated 13.01.2015, and quash the same and consequently, direct the second respondent to redo the assessment afresh after giving adequate opportunity to the petitioner. 2. Heard both sides. 3. The case of the petitioner is that he is the Proprietor of the business concern, namely, 'Lucky Soaps' at Shengottah, Tirunelveli District and during the assessment year, the petitioner reported a total and taxable turnover of Rs.11,49,835/-and 6,77,685/-respectively and also paid the tax dues to the Department along with the monthly returns. While so, the second respondent issued a notice dated 03.12.2014, alleging that the exemption claimed by the petitioner is incorrect and incomplete. According to the petitioner, he was not furnished with any particulars in connection with the said notice and also filed an adjournment letter dated 22.12.2014 seeking one month time to file his reply. Despite the same, the second respondent passed the impugned assessment order, dated 13.01.2015, confirming the proposal in the notice dated 03.12.2014. Aggrieved by the same, the petitioner is before this Court. 4. The learned Counsel for the petitioner submitted that the second respondent issued the notice dated 03.12.2014, proposing to reject the returns filed by the petitioner alleging that it is incorrect and incomplete and also assessed the petitioner under Section 22(4) of the TNVAT Act, 2006 and also proposed to levy penalty under Section 22(5) of the TNVAT Act, 2006. He further submitted that the second respondent while assessing the returns filed by the petitioner afresh, did not furnish the copies of the documents sought for by the petitioner and without giving any opportunity of personal hearing to the petitioner, the impugned assessment order has been passed by the second respondent, which caused great prejudice to the petitioner. He, therefore, prayed for quashing the impugned order on the ground of violation of principles of natural justice. 5. Though no counter affidavit has been filed by the respondents, the learned Additional Government Pleader appearing for the respondents, on instructions, submitted that the second respondent, on scrutiny of the assessment records, found that the exemption claimed by the petitioner is incorrect and incomplete and hence, issued the pre-revision notice dated 03.12.2014, wherein it is proposed to reject the returns filed by the petitioner. He further submitted that despite the receipt of the pre-revision notice, the petitioner failed to submit his reply with necessary documents in support of his claim and hence, he is not entitled to seek an opportunity of hearing under Section 22(4) of the TNVAT Act and therefore, the impugned order passed by the second respondent is tenable in law. 6. I have considered the rival submissions and perused the materials available on record. 7. At the outset, this Court finds that the second respondent, on scrutiny of the assessment records filed by the petitioner, found that the exemption claimed by the petitioner is incorrect and incomplete and therefore, issued the pre-revision notice dated 03.12.2014, informing the petitioner as to the proposal to reject the returns filed by the petitioner and to assess the petitioner under Section 22(4) of the TNVAT Act, 2006 and also proposed to levy penalty under Section 22(5) of the TNVAT Act, 2006. 8. The main contention put forth by the petitioner is that he has not been afforded with due opportunity of personal hearing by the second respondent before passing the impugned order dated 13.01.2015. A mere perusal of the impugned order would clearly reveal that no such opportunity of personal hearing was given to the petitioner while passing the impugned order. 9. No doubt, Section 22(4) of the TNVAT Act, 2006, contemplates a reasonable opportunity of being heard to the dealer before taking action under Section 22(4) of the TNVAT Act, 2006 and in the absence of the same, it would cause great prejudice to the assessee as there is a violation of principles of natural justice. Since it is mandatory to provide the copies of certain invoices which are the basis for issuing the pre-revision notice, dated 03.12.2014, the same cannot be denied to the petitioner and on that score alone, the impugned assessment order warrants interference. 10. In the result, this writ petition is allowed and the impugned proceedings of the second respondent in TIN.33495702258/2013-14, dated 13.01.2015, is quashed. Accordingly, the petitioner is permitted to make an application to the second respondent seeking the copies of the requisite invoices as well as other documents, within a period of one week from today. On receipt of the same, the second respondent is directed to furnish the copies of the same to the petitioner within a period of one week thereafter. Accordingly, the petitioner is permitted to make an application to the second respondent seeking the copies of the requisite invoices as well as other documents, within a period of one week from today. On receipt of the same, the second respondent is directed to furnish the copies of the same to the petitioner within a period of one week thereafter. Upon receipt of the copies of the documents as required, the petitioner shall file his detailed objections to the second respondent within a period of two weeks thereafter. Meanwhile, the second respondent is directed to afford an opportunity of personal hearing to the petitioner and after completion of all formalities, the second respondent shall pass appropriate orders on merits and in accordance with law, within a period of two weeks thereafter. Consequently, the connected miscellaneous petition is closed. No costs.