Tvl. Eastern Condiment (P) Ltd, rep. by its Company Secretary cum Financial Controller U. Sivanathan v. Assistant Commissioner (CT), Theni
2015-10-05
R.SUBBIAH
body2015
DigiLaw.ai
ORDER The Writ Petition has been filed praying for a Writ of Certiorari to call for the records on the file of the respondent in TIN No.33335120734/2014-2015 dated 24.08.2015 and quash the same as illegal, invalid and against the provisions of the Tamil Nadu Value Added Tax, 2006. 2. The case of the petitioner is that he is the manufacturer/dealer in condiments, masala powder, chilli powder etc and an assessee on the file of the respondent under the Tamil Nadu Value Added Tax Act, 2006 and Central Sales Tax Act, 1956, (hereinafter referred to as 'CST' Act). The petitioner in their regular course of business purchased raw materials from registered dealers with locally and interstate after payment of appropriate taxes and their manufactured / finished products are sold locally, interestate and sent to their Head Office at Kerala by way of Branch transfer. The petitioner's entire purchases and sales/dispatches are covered by valid bills/delivery notes and the same are reported to the respondent through their monthly returns along with annexures and appropriate taxes and other amounts due thereon was paid after deducting Input Tax Credit, hereinafter referred to as 'ITC' available to them as per the TNVAT Act and the Tamil Nadu Value Added Rules, 2007, (hereinafter referred to as 'TNVAT' Rules). The petitioner had also properly reversed the Input Tax Credit (Paid on locally purchased raw materials) on their dispatches, branch transfer, to their Head Office at Kerala. Likewise, the petitioner had also properly reported their turn over of direct inter-state sales and dispatches to their head office at Kerala by way of Branch transfer, through their monthly returns under CST Act and paid tax and other amounts due thereon separately. The petitioner reported both TNVAT Act and CST Act turn overs separately as prescribed thereon and paid the tax and other amounts accordingly. Both turn overs under the aforesaid Acts will be assessed separately as per the procedures laid down under the Rules prescribed thereon and at any event, it cannot be clubbed together. 2.1.
The petitioner reported both TNVAT Act and CST Act turn overs separately as prescribed thereon and paid the tax and other amounts accordingly. Both turn overs under the aforesaid Acts will be assessed separately as per the procedures laid down under the Rules prescribed thereon and at any event, it cannot be clubbed together. 2.1. While the situation stood thus, one of the commodities dealt by the petitioner, chillies and chilly powder fall under Entry 18 of the Part-B of IV Schedule to the TNVAT Act and sale of the same by any dealer is exempted from tax by Section 15 of the TNVAT Act, whose turn over in respect of those items does not exceed Rupees three hundred crores in a year. The petitioner total turn over of chillies and chilly powder for the assessment year 2014-2015 is below the limit of Rupees three hundred crores and hence, the petitioner claimed exemption on their local sales turn over of Rs.10,22,09/,426/ -in the regular monthly returns filed under the TNVAT Act. The petitioner reported a total and taxable turn over of Rs. 24,70,31,697/- and Rs.14,48,22,271/- respectively, claiming exemption on their sales turn over of chillies and chilly powder of Rs.10,22,09,426/- in their regular monthly returns filed under the TNVAT Act. While so, the petitioner on 28.07.2015 received a notice from the respondent vide TIN No.33335120734/2014-2015 dated Nil, signed by the respondent on 23.07.2015, wherein the respondent stated that the 'petitioner have reported a total turn over (CST+VAT) of Rs.353,63,85,695 for the year 2014-2015' and requested the petitioner firm to pay tax of 5% for exempted sale under commodity code-2052. Consequently, the respondent determined the tax amount of Rs.51,10,471/- and further proposed to levy penalty under Section 27(3) of the TNVAT Act. The respondent granted 15 days time to the petitioner to file their objections. 2.2. The notice was served on the petitioner on 28.07.2015 and the petitioner had time till 12.08.2015 to file their objections. In the meantime, the respondent issued another revised notice, containing the same contents with the rectification of the correct figures of the total and taxable turn over reported by the petitioner under the TNVAT Act, signed on 06.08.2015. The said revised notice was served on the petitioner on 08.08.2015 and the petitioner filed their detailed objections against the aforesaid proposals of the respondent vide their reply dated 13.08.2015.
The said revised notice was served on the petitioner on 08.08.2015 and the petitioner filed their detailed objections against the aforesaid proposals of the respondent vide their reply dated 13.08.2015. Though the petitioner filed detailed objections, without considering the same, the impugned order came to be passed resulted in filing the present Writ Petition. 3. The only contention raised by the petitioner is that as required under Section 22(4) of the Act, before passing the impugned order personal hearing has to be afforded to the petitioner to substantiate the claim of the petitioner. However, in the case on hand, without giving a personal hearing to the petitioner the impugned order is passed. Therefore, there is total violation of principles of natural justice. On this score alone, the impugned order is liable to be set aside. 4. The learned Additional Govt. Pleader was put on notice on the above-said submission made by the learned counsel for the petitioner. However, he opposed to the said submission stating that the order impugned in this Writ Petition need not be set aside as it is a reasoned order. 5. However, I am of the considered view that as per Section 22(4) of the Act, before passing the impugned order, personal hearing is must to put forth the contentions of the petitioner firm. In the case on hand, it is seen that no such personal hearing was given to the petitioner to substantiate the claim of the petitioner. Accordingly, the order impugned in this Writ Petition stands set aside and the respondent is directed to provide a personal hearing to the petitioner within a period of four weeks from the date of receipt of a copy of this order. After doing so, the respondent is directed to pass appropriate orders on merits and in accordance with law within a period of four weeks from the date of personal hearing. 6. With the above direction, this Writ Petition stands disposed of. No costs. Consequently, connected miscellaneous petition is closed.