Ettayapuram v. Income Taxofficer And Others In Appeal (Civil)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT W.P(MD) Nos.15159, 15161 to 15164 of 2020andW.M.P(MD)Nos.12775 to 12777, 12779 and 12780 of 2020 Tvl. Madhucon Projects Limited,represented by its Manager (F & A),G.V.L.N.SASTRY ... Petitioner in all W.Ps The State Tax Officer, Ettayapuram. ... Respondent in all W.Ps Common Prayer:Writ Petitions are filed under Article 226 of theConstitution of India, praying for issuance of a Writ ofCertiorarified Mandamus calling for records pertaining to theimpugned proceedings passed by the respondent inTIN.No.33841602409/2012-13,TIN.No.33841602409/2013-14,TIN.No.33841602409/2014-15,TIN.No.33841602409/2015-16andTIN.No.33841602409/2016-17 dated 09.09.2020 and quash the same asillegal, invalid and against the Principles of Natural Justice andfurther direct the respondent to pass order afresh in a speakingmanner after properly verifying the book of accounts of thepetitioner and also by properly considering the petitioner'sobjections and also after affording an opportunity of personalhearing to the petitioner in view of the judicial precedentdelivered by the Division Bench of the Honourable Supreme Court ofIndia in case of M/s.GKN Driveshafts (India) Ltd., vs. Income TaxOfficer and Others in Appeal (Civil) No.7731 of 2002, dated25.11.2002 [(2002) 125 Taxman 963(SC)]. TIN.No.33841602409/2016-17 respectively, dated 09.09.2020 andquash the same as illegal, invalid and against the Principles ofNatural Justice and to direct the respondent to pass orders afreshafter properly verifying the book of accounts of the petitionerand also by properly considering the petitioner's objections andalso after affording an opportunity of personal hearing to thepetitioner as per the ratio laid down by the Honourable SupremeCourt of India in case of M/s.GKN Driveshafts (India) Ltd., vs.Income Tax Officer and Others in Appeal (Civil) No.7731 of 2002,dated 25.11.2002 [(2002) 125 Taxman 963(SC)]. 2.The brief facts of the case are as follows: (i) The petitioner is the Manager of a Concern by name Tvl.Madhucon Projects Limited., and they are doing business andexecuting contract works and they are registered with therespondent in TIN:33841602409 under the Tamil Nadu Value Added TaxAct, 2006 and CST:764868 under the Central Sales Tax Act, 1956 andthey are regularly filing the monthly returns. While the matterstood thus, the respondent has passed the deemed assessment ordersby accepting the total and taxable turnover reported throughreturns as required under Section 22(2) of the TNVAT Act andthereafter, in the year 2018, the assessments were revised by therespondent pursuant to the inspection conducted by the EnforcementWing Officials of the Commercial Taxes Department in the businesspremises of the petitioner on 22.06.2016 and 23.06.2016. Basedon the said inspection, the assessments of the petitioner Concernwere revised from the assessment years 2012-13 to 2016-17.Since the said revision orders were passed grossly violating theprinciples of natural justice by not providing personal hearing,batch of writ petitions were filed before this Court and theassessment orders came to be set aside and the matter was remandedback to the respondent for passing orders afresh by givingopportunity of personal hearing to the petitioner. (ii) Pursuant to the said order passed by this Court, therespondent has passed the impugned orders, but without properlyverifying the accounts and also not properly appreciating thefacts and the objections filed by the petitioner, which are allspecifically explained at the time of video conferencing arrangedby the petitioner on 07.09.2020 and also the material recordswhich are placed through Zimbra mail on 08.09.2020. Hence, thesewrit petitions. (ii) Pursuant to the said order passed by this Court, therespondent has passed the impugned orders, but without properlyverifying the accounts and also not properly appreciating thefacts and the objections filed by the petitioner, which are allspecifically explained at the time of video conferencing arrangedby the petitioner on 07.09.2020 and also the material recordswhich are placed through Zimbra mail on 08.09.2020. Hence, thesewrit petitions. 3. The learned counsel appearing for the petitioners wouldcontend that the respondent without giving an opportunity ofpersonal hearing and also without verifying the records, haspassed the non-speaking orders and the same are to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 4. Per contra, Mrs.J.Padmavathi Devi, learned SpecialGovernment Pleader appearing for the respondent reiterating theaverments made in the counter affidavit would contend that as perthe circular, which has been issued by the Commissioner ofCommercial Taxes, Chennai, personal hearing was given throughVideo Conference and personal hearing notice was sent to thepetitioner on 29.08.2020 and 03.09.2020 and one Mr.JosephPrabhakar represented the Petitioner Concern through videoconference on 07.09.2020 and 08.09.2020 and the petitioner alsosent some documents through Zimbra mail, which revealed that theyhad reiterated and filed the same contentions/records, raised intheir objections to the notices already issued to them. Since thepetitioner had not filed valid and supportive documents, therespondent has passed the impugned assessment orders dated09.09.2020 and the said orders have also been duly served on thepetitioner. 5. In short, the learned Special Government Pleader wouldstate that the levy of tax and penalty has been imposed within theprovisions of the Rules and in accordance with law and hence,there is no illegality or infirmity in the said orders. 6. Heard the learned counsel appearing for the petitioner andthe learned Special Government Pleader appearing for therespondent and perused the materials placed before the Court. 7. In view of the submissions made and also after goingthrough the materials placed, this Court is of the view that therespondent has passed the impugned orders, after following the dueprocedure contemplated under law and after considering theobjections raised by the petitioner and also by providing personalhearing to them. Therefore, if at all the petitioner isaggrieved, they have to approach the concerned Appellate DeputyCommissioner and not to approach this Court by way of filing thewrit petitions. 8. When the petitioner is having an effective and alternateremedy by filing an appeal before the Appellate DeputyCommissioner, Tirnelveli, filing of the present writ petitions, istotally misconceived and are liable to be dismissed. 9. In the result, the writ petitions are dismissed withliberty to the petitioner to move before the Appellate DeputyCommissioner, Tirunelveli. It is made clear that the period inhttps://hcservices.ecourts.gov.in/hcservices/which the matter was pending before this Court may be excluded for the purpose of limitation. No Costs. Consequently, connectedMiscellaneous Petitions are closed. Sd/-Assistant Registrar () / /2021Sub Assistant Registrar(CS) PM Note:In view of the present lock down owing toCOVID-19 pandemic, a web copy of the order maybe utilized for official purposes, but,ensuring that the copy of the order that ispresented is the correct copy, shall be theresponsibility of the advocate/litigantconcerned. To The State Tax Officer,Ettayapuram. Copy toThe Section Officer, ER Section, Madurai Bench of Madras High Court, Madurai. the purpose of limitation. No Costs. Consequently, connectedMiscellaneous Petitions are closed. Sd/-Assistant Registrar () / /2021Sub Assistant Registrar(CS) PM Note:In view of the present lock down owing toCOVID-19 pandemic, a web copy of the order maybe utilized for official purposes, but,ensuring that the copy of the order that ispresented is the correct copy, shall be theresponsibility of the advocate/litigantconcerned. To The State Tax Officer,Ettayapuram. Copy toThe Section Officer, ER Section, Madurai Bench of Madras High Court, Madurai. (To return the original impugned orders to the Learned Counsel forthe Petitioner after getting xerox copy of the same for officialrecords and after getting appropriate acknowledgment from theLearned Counsel for the Petitioner) +5 CC to Mr.K.SRINIVASAN, Advocate ( SR-15676[F] dated09/04/2021 ) +1 CC to SPL GP ( SR-16013[F] dated 16/04/2021 ) https://hcservices.ecourts.gov.in/hcservices/