Https://Hcservices.ecourts.gov.in/Hcservices v. The Deputy Commissioner Of Income Tax Inw.a

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR. JUSTICE R. MAHADEVANand THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD Bava Erectors No.W-20/D,Italian Avenue, Block-27Neyveli-03Represented by its Managing Partner,Mr.Shahul Hameed .. Appellant / Petitioner The Commercial Tax Officer,Cuddalore Taluk Assessment CircleManjakuppam, Cuddalore. .. Respondent / Respondent Writ Appeal filed under Clause 15 of Letters Patent prayingto set aside the order made in W.P. No. 25393 of 2021 dated30.11.2021. Prayer in W.P. No. 25393 of 2021:- Writ Petition filed underArticle 226 of the Constitution of India, to issue a writ ofcertiorari, calling for the records of the impugned Assessmentorder bearing Ref.No.TIN.33174403992/2013-2014 dated 09.08.2021and quash the same. JUDGMENT (Judgment of the Court was delivered by R. Mahadevan, J) The appellant has come forward with this intra-court appealquestioning the validity and correctness of the order dated https://hcservices.ecourts.gov.in/hcservices/ 30.11.2021 passed by the learned Judge dismissing the writpetition No. 25393 of 2021 filed by them with liberty to work outtheir remedy before the Appellate Authority by filing an appeal. 2. The appellant company is a registered dealer under theerstwhile Tamil Nadu Value Added Tax Act, 2006 and engaged in thebusiness of man power supply by entering into labour contractswith Neyveli Lignite Corporation and its associated enterprises.According to the appellant, they have duly filed the monthlyreturns in Form-I for the years 2013-14 and 2014-15. While so,their business premises was inspected by the Enforcement Wing ofthe Commercial Taxes Department on 20.10.2015 and 30.09.2016 andfound certain discrepancies. According to the appellant, suchdiscrepancies noticed by the enforcement wing officials arenothing but inadvertent errors committed by the appellant whilemaintaining the books of accounts. However, the AssessingOfficer determined the difference in the deemed sale value forthe year 2013-14 a sum of Rs.50,05,625 and for the year 2014-15 asum of Rs.39,62,905/-, based on which demand for payment of taxof Rs.5,82,810/- and Rs.2,35,793/- respectively was raised.Aggrieved by the same, the appellant filed a revised return andduly paid the tax as demanded. However, on 06.10.2017 a showcause notice was issued, proposing to demand tax on the ground ofalleged purchase suppression as per the details available in thedepartmental website for the years 2013-14 and 2014-15. Theappellant replied to the said notice on 10.11.2017 andthereafter, no further action has been taken till 13.07.2021.While so, after lapse of more than three years, another showcause notice dated 13.07.2021 was issued on the same ground andthereafter, the assessment orders were passed on 09.08.2021. 3. It is the further case of the appellant that there wasmismatch between details furnished by them and the detailsavailable in the departmental website. But the assessingofficer, without conducting any enquiry, passed the orders ofassessment on 09.08.2021. Therefore, challenging the assessmentorders dated 09.08.2021, the appellant filed W.P. Nos. 25393 and25394 of 2021 before this Court. However, the learned Judge,without adverting to the merits of the averments raised by theappellant in the affidavit filed in support of the writpetitions, dismissed the writ petitions on 30.11.2021 bygranting liberty to the appellant to workout their remedy beforethe Appellate Commissioner by way of an appeal within a periodof thirty days and directed the Appellate Commissioner todispose of the same within a period of three months thereafter.As against the order dated 30.11.2021 passed in WP No. 25393 of2021, the appellant is before this court with this writ appeal. 4.It is the contention of the learned counsel for theappellant that the assessment orders suffer from patent 4.It is the contention of the learned counsel for theappellant that the assessment orders suffer from patent illegalities and they were passed without jurisdiction. When thejurisdiction of the respondent was questioned, the learnedJudge ought to have considered the writ petition on merits, butwithout doing so, dismissed the same on the sole ground that theappellant has not submitted their reply to the second show causenotice. He would further submit that in the case of M/s. WABCOIndia Limited vs The Deputy Commissioner of Income Tax inW.A.No.884 of 2018 this Court has held as follows; ....where the jurisdiction of the respondentto issue the impugned show cause notice was underchallenge, in our considered view, the writpetition ought not to have been dismissed on theground that the appellant had a right to reply tothe show cause notice. The learned Single Benchought to have examined whether the show causenotice was in excess of jurisdiction, byexamination of jurisdictional facts, which led toissuance of show cause notice' 5. It is his further contention that when the second showcause notice dated 13.07.2021 was issued, COVID 19 lockdown wasin force in the State of Tamil Nadu. The lockdown imposed bythe State restricted the number of working staff in theappellant firm for various activities, including their businessactivity, thus, the functioning of appellant's office wasdisrupted. While so, the appellant could not submit their replyto the second show cause notice dated 13.7.2021 within thestipulated time. The reply submitted by the appellant on10.11.2017 to the first show cause notice dated 06.10.2017 wassimply kept in abeyance till 13.7.2021 by the respondent andafter nearly four years, the respondent revived the assessmentproceedings without stating any reason for such delay and passedthe assessment orders without considering the replies alreadyfiled by the appellant. Hence the finding of the learned Judgethat the writ petition is not maintainable as the appellantneither filed any representation nor appeared before therespondent is erroneous. Therefore the learned counsel for theappellant prayed for setting aside the order of the learnedSingle Judge and prayed to allow this appeal. 6. On the other hand, the learned Government Advocatewould contend that the dispute raised by the appellant relatesto improper computation and/or determination of taxnotwithstanding their plea that there were certain inadvertenterrors crept in the books of accounts maintained by them. If itis so, this Court cannot go into those disputed questions andtherefore, the learned Judge is right in dismissing the writpetition filed by the appellant, granting liberty to file astatutory appeal before the appellate authority. 7. The learned Government Advocate appearing for therespondent would further submit that the assessment order dated09.08.2021 states that an opportunity of personal hearing wasgiven to the appellant by issuing notice dated 13.07.2021 fixingthe date of personal hearing as 19.07.2021, however, theappellant did not participate in the personal hearing, whichshows that the appellant has no interest in availing theopportunity of personal hearing. Apart from that, there was noexplanation given by the appellant as to why they did not chooseto file the writ petition on an earlier occasion when the firstshow cause notice was issued on 06.10.2017. In any event,taking note of the above facts, the learned Judge has rightlydismissed the writ petition granting liberty to the appellant toworkout their remedy before the Appellate Commissioner. Thelearned Government Advocate therefore prays for dismissal ofthis writ appeal. 8. Heard the learned counsel appearing on either side andperused the materials placed before this Court. It is seen fromthe records that before passing the order of assessment dated09.08.2021, a second show cause notice dated 13.07.2021 wasissued fixing the date for personal hearing as 19.07.2021.Even though the appellant cites several reason for nonappearance, they failed to seek an adjournment on the date fixedfor hearing and sought for an opportunity of hearing on anotherdate. As the appellant did not avail the opportunity of hearinggranted to them, the assessing authority has passed the order ofassessment. The learned Judge, taking note of the above facts,has rightly directed the appellant to assail the order of theassessing officer by filing an appeal to the appellateauthority. We find no reason to interfere with such a directionissued by the learned Judge. However, we hereby grant four moreweeks time for the appellant to file a statutory appeal beforethe Appellate Authority. If any such appeal is filed, the sameshall be considered by the Appellate Authority on merits and inaccordance with law and appropriate orders be passed within aperiod of three months thereafter. 9. With the above observations, this writ appeal isdismissed. No costs. Consequently, connected C.M.P.No.2721 of2022 is closed. Sd/- Assistant Registrar True Copy// Sub Assistant Registrar msr/rsh To The Commercial Tax Officer, Cuddalore Taluk Assessment Circle Manjakuppam, Cuddalore. +1cc to Mr. Adithya Reddy, Advocate, S.R.No.12162+1cc to the Government Pleader, S.R.No.12494 WA No. 340 of 2022 GPL[co]NSK 18/03/2022