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2015 DIGILAW 2674 (MAD)

B. Jansi Rani, Proprietor, Sri Swamy Sports & Musicals v. Assistant Commissioner of Commercial Taxes

2015-07-31

R.MAHADEVAN

body2015
ORDER This writ petition is filed to quash the proceedings of the first respondent in TIN No. 33054803116/2014-2015 (CST RC No.169666 dated 07.04.2011) dated 31.12.2014 as without jurisdiction, illegal, arbitrary and violative of the principles of natural justice. 2. It is stated in the affidavit filed in support of this writ petition that the petitioner is a dealer in sports goods and musicals and an assessee on the file of the first respondent herein. The petitioner states that the shop bearing Door Nos.10, 10A and 10B, West Tower Street, Madurai is owned by the Madurai Arulmigu Tamil Thirugnana Sambantha Swamigal Aatheenam, otherwise called the Madurai Aatheenam. Originally the petitioner's father-in-law one T.C.Swamy Ayya took lease of the building from the Madurai Aatheenam and was conducting business in the name and style of Sri Swamy Sports at Door No.10; Central Pan House at Door No.10A; and a retail Beeda shop at Door No.10B. He closed the business and the petitioner's husband, S.Boopathi, got registered with the first respondent and he conducted the business from 01.04.2004. The younger brother of the petitioner's husband was conducting pan shop in the other portion. The petitioner further states that her husband closed the business on 31.03.2011 and his Registration Certificate was cancelled by the first respondent. Thereafter, the petitioner applied for registration with the first respondent under the Tamil Nadu Value Added Tax Act and the Central Sales Tax Act, based on a lease agreement dated 01.04.2011 executed by the agent of the lessor in favour of the petitioner and her husband. The certificate was issued with effect from 01.04.2011. The said lease agreement was also atoned by the lessor- Madurai Aatheena Kartha himself by executing a lease agreement jointly in favour of the petitioner and her husband. While so, the first respondent issued a notice to the petitioner dated 05.10.2012 stating that the lessor has sent a letter dated 03.10.2012 requesting for cancellation of registration on the ground that the lease granted had been cancelled by the lessor. The petitioner filed objections dated 12.10.2012. She also requested the first respondent to furnish the copy of the complaint of the lessor as well as the connected documents to submit her reply. She also sent a reminder to the first respondent for the same. The petitioner filed objections dated 12.10.2012. She also requested the first respondent to furnish the copy of the complaint of the lessor as well as the connected documents to submit her reply. She also sent a reminder to the first respondent for the same. While so, another notice dated 20.11.2012 was issued to the petitioner stating that she should contact the lessor to get the documents and submit her reply. The petitioner thereafter, filed a suit in O.S.No.1136 of 2012 before the District Munsif Court, Madurai Town against the lessor for mandatory injunction against the lessor for receiving the monthly rents from the petitioner regularly and the said suit is pending. The petitioner also submitted a reply to the notice dated 03.11.2012 to the first respondent stating that she was not able to contact the lessor and there is no possibility of getting the documents from them. The petitioner requested the first respondent to furnish to her a copy of the cancellation letter to enable her to submit her reply to the notice. Only on 08.12.2012, the lessor sent a notice to the petitioner canceling the lease agreement dated 05.10.2011. 3. The petitioner further states that on 05.02.2013, the lessor filed a civil suit in O.S.No.100 of 2013 on the file of the District Munsif, Madurai Town against the petitioner and her husband, and prayed for a grant of decree for cancelling the rental agreement dated 05.10.2011 and also for other reliefs and the said suit is pending. In the mean while, the lessor filed a writ petition in W.P.(MD)No.546 of 2014 before this Court for a direction to the first respondent to cancel the registration of the petitioner based on the representations given by them. On 12.09.2014, this Court passed an order in that writ petition, directing the authorities to consider the representations after issuing notice to the lessor and others, on merits and in accordance with law, within a period of eight weeks. Based on the said order, the first respondent herein, issued a show-cause notice dated 28.11.2014 proposing to cancel the Registration Certificate. Along with this notice, the first respondent had also enclosed the letter of the lessor dated 03.10.2012 sent to the first respondent as well as the model form of the lease agreement. On receipt of the notice, the petitioner sent a reply on 10.12.2014 objecting to the proposal on many grounds. Along with this notice, the first respondent had also enclosed the letter of the lessor dated 03.10.2012 sent to the first respondent as well as the model form of the lease agreement. On receipt of the notice, the petitioner sent a reply on 10.12.2014 objecting to the proposal on many grounds. She also submitted another reply dated 11.12.2014 to the first respondent, bringing to his notice the criminal case in C.C.No.22 of 2013 filed by her husband's brother against her and her husband, alleging that the lease agreement dated 01.04.2011 is a forged one. She also brought to his notice the criminal case filed in C.C.No.254 of 2013 filed by her and her husband against the lessors and others, and requested the first respondent not to cancel her registration certificate, till the matter is decided by the Courts. The lessor did not lodge any complaint against the petitioner stating that the lease agreement dated 01.04.2011 is a forged one. On 29.12.2014, the petitioner sent a representation to the first respondent, to issue summons to the landlord to get the necessary information and also to afford her an opportunity of cross-examination under TNVAT Act and also permit her to file additional objections. She also requested for an opportunity of personal hearing. 4. It is further stated by the petitioner that she filed a suit in O.S.No.10 of 2015 before the District Munsif, Madurai Town, for a declaration declaring that the cancellation notice dated 28.11.2014 is null and void. In these circumstances, on 09.01.2015, the petitioner received the impugned order dated 31.12.2014 from the first respondent, cancelling the Registration Certificate granted to her, without even considering her objections and the request for personal hearing. It is submitted that the respondent has cancelled the certificate on the grounds that the rent agreement dated 01.04.2011 is not an authenticated one; that the xerox copy of the rent receipts submitted by one Vethamuthu, Manager of Aatheenam proved that the rent receipt submitted by the petitioner along with the application for grant of Registration Certificate is a forged one; that the letters sent to the petitioner on three occasions were returned as “unserved” and that the door of the shop was found closed on 17.10.2012. 5. 5. The petitioner further submits that the issue regarding continuance of the lease is pending before the Civil Court in O.S.Nos.1136 of 2012 and 100 of 2013, and therefore, the first respondent has no authority to decide the validity of the lease for the purpose of cancelling the registration. 6. Further, the petitioner has filed a supporting affidavit, wherein it is stated that the first respondent took different stands in the show cause notice and the impugned order for cancellation of the Registration Certificate. The petitioner states that at no point of time, she had forged the lease agreement, nor the rental receipt. She further states that the agreement dated 11.04.2011 is only due to the request of the petitioner to the second respondent for the purpose of issuing a registration certificate as earlier. The rental receipt was issued in favour of the petitioner due to the family arrangement between her husband and his family members. 7. Stating the above, the petitioner has come up with this writ petition, seeking the prayer, as already stated supra. 8. A counter affidavit has been filed by the first respondent, in which the allegations in paragraphs 5 and 6 of the petitioner's affidavit are denied as utter false and without any material and that the petitioner is put to strict proof of the same. It is stated in the counter that while submitting the application for registration, the petitioner had enclosed a copy of the rental agreement dated 01.04.2011 executed by one G.Raja, alleged to be the agent of the lessor/landlord. Further the petitioner also enclosed a copy of the rent receipt No.14529 dated 23.03.2011 issued by one Vedamoorthi, Manager of Aatheenam, by mentioning the name of the tenant as B.Jansi Rani, ie., the petitioner. Only based on the said rental deed and rent receipt, believing it to be genuine, the petitioner's concern was registered with the Department and Registration Certificates were issued. 9. It is further stated in the counter that the second respondent – Madurai Aatheenam has filed a petition before the Joint Commissioner (CT) stating that the above documents filed by the petitioner are forged, and requesting to cancel her registration based on the forged documents. Only on receiving the same, the petitioner was called for enquiry on 07.03.2012. 9. It is further stated in the counter that the second respondent – Madurai Aatheenam has filed a petition before the Joint Commissioner (CT) stating that the above documents filed by the petitioner are forged, and requesting to cancel her registration based on the forged documents. Only on receiving the same, the petitioner was called for enquiry on 07.03.2012. It is also stated that the contention of the petitioner clearly shows that the rental agreement dated 01.04.2011 filed along with the Registration Certificate is not at all genuine. Further, as admitted by the petitioner, she had not entered into any agreement legally with the landlord on the date of application for registration. It is also stated that the Manager of Aatheenam, Vedamoorthi, has produced a copy of the rent receipt No.14529 dated 23.03.2011, in which the name of the tenant is mentioned as Swamy Iyea @ Swaminathan. Hence, it is clear that the petitioner has forged the said rent receipt as if it is issued in her name and submitted the same along with the application for registration and thereby fraudulently obtained registration from the Department. Therefore, the first respondent states that the petitioner's registration was rightly cancelled under Section 39(4) of the Tamil Nadu Value Added Tax. 10. It is further stated in the counter that the grounds raised in the affidavit of the petitioner are all baseless and the circular and judgment relied upon by them are not at all applicable to the subject case. Further, it is stated by the first respondent that if the petitioner is aggrieved by the impugned order, she ought to have challenged the same before the Joint Commissioner of Commercial Taxes by way of a revision under Section 54 of the TNVAT Act. On the ground that such alternative remedy is available, the writ petition is liable to be dismissed, according to the first respondent. 11. The second respondent – Madurai Aatheenam, has also filed a counter affidavit wherein it is stated that the petitioner did not give any reason for closing of business by one Boopathy in Door No.10 of the property. It is stated that the petitioner, with an intention to grab the property of the second respondent, fabricated a lease agreement dated 01.04.2011 as if it was executed by employee of Aatheenam. It is stated that the petitioner, with an intention to grab the property of the second respondent, fabricated a lease agreement dated 01.04.2011 as if it was executed by employee of Aatheenam. It is further stated that it is the usual procedure followed by the second respondent that he himself will execute the lease agreement in respect of properties of Aatheenam. The second respondent never delegate his power to anyone in the Aatheenam in the administration of Aatheenam properties. It is further stated that the petitioner got registered only by producing fabricated lease deed dated 01.04.2011 and fabricated xerox copy of rental receipt. It is stated that the averments made in Paragraph-6 of the affidavit of the petitioner that the lease agreement in favour of the petitioner was atoned by the lessor-Madurai Aatheenakartha himself by executing a lease agreement jointly in her favour and her husband on 05.10.2011, is false. The original tenant C.Sami Ayya @ Swaminathan, in June 2011, due to his old age and ill health, surrendered his lease with a request to transfer the lease in favour of his son S.Sundhar. Based on the same, the second respondent has also executed lease agreement, in favour of S.Sundhar in respect of the three shops in D.Nos.10, 10A and 10B, West Tower Street, Madurai-1 on 01.07.2011. While so, the petitioner and her husband, approached the Aatheenam and represented that there is a family arrangement between the petitioner, her husband and the original tenant Sami Iyya @ Swaminathan and requested the Aatheenam to execute lease deed to them in respect of ½ shares in the disputed property in D.No.10. Believing the same, the Aatheenam has also executed lease agreement in favour of the petitioner and her husband S.Boopathy on 05.10.2011. While so, another son of Sami Iyya @ Swaminathan, to save his leasehold rights, approached the civil Court and filed a suit in O.S.No. 943 of 2011. On knowing this fraudulent act of the petitioner, the second respondent sent a complaint to the Commissioner of Police, Madurai City. The said S.Sundhar also lodged a complaint against the petitioner, her husband and her father Devaraj Nachiappan before the Deputy Commissioner of Police, Madurai and a case was registered against the above persons in Cr.No.88 of 2012 by CCB, Madurai. The said S.Sundhar also lodged a complaint against the petitioner, her husband and her father Devaraj Nachiappan before the Deputy Commissioner of Police, Madurai and a case was registered against the above persons in Cr.No.88 of 2012 by CCB, Madurai. Thereafter, the third respondent cancelled the lease agreement of the petitioner dated 05.10.2011 as per law, and thereafter filed a suit before the learned Additional District Munsif, Madurai in O.S.No.100 of 2013 and the same is pending. It is further stated that the enquiry in respect of issuance of TIN Number was based on fabricated lease agreement and rent receipts. Finally, it is stated in the counter, that the petitioner has not approached this Court with clean hands. 12. Heard the learned counsel on either side and perused the materials available on record, carefully. 13. Admittedly, the lease agreement related issues are pending before the Civil Courts. This Court cannot go into all those factual disputes. Hence, it is always open for the parties to ventilate their grievances before the Civil Court. 14. With regard to cancellation of registration, Section 39(14) of the Tamil Nadu Value Added Tax Act, 2006, empowers the registering authority to cancel the registration for any justifiable reasons. According to Section 39(14), the authority granting the certificate of registration may, by order, for good and sufficient reasons to cancel, modify or amend any certificate of registration granted by it. Section 39(15) provides that no order under Sub-Section 14 shall be made, unless the dealer concerned has been given an opportunity of being heard. 15. On a writ petition filed by the landlord, in W.P.(MD)No.546 of 2014, this Court by order dated 12.09.2014 directed the first respondent to consider the representation of the petitioner therein, with regard to cancellation of Registration Certificate and thereafter pass appropriate orders on merits. Pursuant to the direction issued by this Court, the first respondent issued a notice dated 26.11.2014 for filing objections. In response to the said notice, the petitioner filed detailed objections on 10.12.2014, 11.12.2014 and 29.12.2014. Considering the same, the impugned order came to be passed. Though Section 39 of the TNVAT Act does not rely upon the rental agreement for issuing Registration Certificate, Sub-Section 14 empowers the officer to cancel the registration for good and sufficient reasons. The rental agreements are not mandatory either for issuing Registration Certificate or cancelling the same. Considering the same, the impugned order came to be passed. Though Section 39 of the TNVAT Act does not rely upon the rental agreement for issuing Registration Certificate, Sub-Section 14 empowers the officer to cancel the registration for good and sufficient reasons. The rental agreements are not mandatory either for issuing Registration Certificate or cancelling the same. But in the present case, the impugned order came to be passed only on the alarming circumstances of presentation of forged documents and related rival claims. Under Article 226 of the Constitution of India, this Court cannot go into all those aspects. Against the impugned order, there is an alternative remedy under Section 54 of the TNVAT Act to ventilate the grievances of the petitioner. With regard to other legal issues, as stated supra, it is always open to the parties to seek appropriate remedies from the Civil Court. 16. With the above observations, the writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.