The Assistant Commissioner (Ct),Hosur (South) Assessment Circle,Hosur v. Chief Commissioner Ofincome Tax (Osd) And Another) Further Direct The Respondent Topass Orders Afresh As Requested By The Petitioner Vide Hisrepresentation Date

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM Sri Rukmani Rolling Mill Private Limited,rep. by its Director,Yaduveer Ganapatisagar,S.Y. No. 267/268, Kothajogur Village,Komaranapalli – Panchayat,Denkanikottai T.K.Krishnagiri (Dt) – 635 114. ... Petitioner The Assistant Commissioner (CT),Hosur (South) Assessment Circle,Hosur. ... Respondent Prayer:Petition under Article 226 of the Constitution of Indiapraying for issue of a Writ of Certiorarified Mandamus to callfor the records on the files of the respondent in CST No.944962/2014-15 dated 22.02.2016 and quash the same as beingwithout jurisdiction and authority of law and contrary to theprinciples of natural justice and that of the principle laiddown by this Honourable Court in the judgment reported in (2007)295 ITR 303 (Mad) (V. Selladurai Vs. Chief Commissioner ofIncome Tax (OSD) and another) further direct the respondent topass orders afresh as requested by the petitioner vide hisrepresentation dated 25.04.2016. This writ petition is filed for issue of a Writ ofCertiorarified Mandamus to call for the records on the files ofthe respondent in CST No. 944962/2014-15 dated 22.02.2016 andquash the same as being without jurisdiction and authority oflaw and contrary to the principles of natural justice and thatof the principle laid down by this Honourable Court in thejudgment reported in (2007) 295 ITR 303 (Mad) (V. Selladurai Vs.Chief Commissioner of Income Tax (OSD) and another) and furtherdirect the respondent to pass orders afresh as requested by thepetitioner vide his representation dated 25.04.2016. 2.The petitioner is a Limited Company havingCertificate of Registration under TNVAT Act 2006 in TIN No.33343364301 and also having a certificate of registration underCST Act 1956 in CST No. 944962 dated 10.09.2007 and an assesseeon the file of the respondent herein. The nature of businesscarried on by the Company is manufacturing finished productssuch as M.S. Angles and M.S. Channels by using raw materialssuch as ingots billets sponge iron, iron scraps and selling suchM.S. Angles and M.S. Channels locally and inter-state trade anddespatching such M.S. Angles and M.S. Channels on stocktransfers to his branch in Kerala State and to consignment agentin other States. The petitioner had been issued with a noticedated 12.11.2015 under Section 22(4) of the Tamil Nadu ValueAdded Tax Act, 2006 read with Section 9(2) of the Central SalesTax Act, 1956, on 14.12.2016 and thereby, proposed to reject theclaim of exemption in so far as the transactions related toconsignment and Branch transfer is concerned on the ground thatthe petitioner had not obtained and produced the requisitedeclarations in From F for their claim. However, the petitionerawaited his further notice fixing date for personal hearing soas to enable to obtain and produce the requisite forms insupport of his claim for exemption. Though the petitionerobtained all the requisite forms in the mean time and waited forpersonal hearing, the respondent had passed final orders on22.02.2016 and confirmed his proposal by levying tax , thattoo, on the exempted turnover and served the order on 12.04.2016without grant of such opportunity for personal appearance which,according to the petitioner, is mandatory requirement inaccordance with Section 22(4) of the Tamil Nadu Value Added TaxAct, 2006. Further, according to the petitioner, in theimpugned order, while levying tax at the rate of 5% on theturnover of Rs.53,99,88,582/-, the respondent had wronglyimposed at Rs.7,69,99,429/- instead of correct amount ofRs.2,69,99,429/- which is patently clerical and calculationerror and the petitioner had, however, given application dated 25.04.2016 pointing out this mistake besides seeking request toaccept the requisite declarations in Form F which cover up allthe turnover in question with details/statement of forms andsubmitted the application under Section 84 of the TNVAT Act,2006 for fresh assessment. The said application dated 25.04.2016had been submitted in person on 25.04.2016 itself and one morecopy had also been sent to the respondent on 04.05.2016 byregistered post and the said application is admittedly pendingconsideration before the respondent, as on date. Hence, thepetitioner has come up with the present writ petition for therelief aforesaid. 3.Heard the learned counsel on either side.4.It is brought to the notice of this Court by thelearned counsel for the petitioner, that, in similarcircumstances, in the judgment rendered in (AUDIO PEOPLE V. CTO,PONDY BAZAAR ASSESSMENT CIRCLE, CHENNAI) reported in (2016) 89VST 397 (Mad), this Court, relying on the circular issued by theCommissioner of Commercial Taxes, Chennai dated February, 1,2000, based on the Full Bench's judgment of this Court renderedin Arulmurugan's case ((1982) 51 STC 382 (Mad) (FB), allowed thewrit petition and directed the respondent therein to accept formI filed by the petitioner for the sales made to "SEZ" and passorders afresh in accordance with law. The relevant portion ofthe judgment is extracted hereunder:"9............The facts which are not disputedin the cases on hand show that the petitioner isregularly filing their monthly returns and complyingwith the statutory requirements. The respondent hadalso accepted the turnover reported by the petitioneras correct and determined the same. However, for wantof form C and form I, the respondent adopted higherrate of tax at 14.5 per cent, which in my view, cannotbe sustained in view of a circular dated February 1,2000, issued by the Commissioner of Commercial Taxes,Chennai. For better appreciation, the same isreproduced hereunder:"the first original assessment order is to bepassed with the maximum available C forms.However, where the party subsequently produced Cforms from other States invoking the provisionthat he (assessee) had tried his best, but it wasbeyond his control, because C forms were eithernot readily available or not readily issued inthose States, the assessing officers have to beliberal in reopening the reassessing of suchcases. Further the High Court of Madras has heldin the case of Arulmurugan and Company reported in [1982] 51 STC 381 (Mad) that the proviso toSection 8(4) does not insist that the assesseeshould establish before the prescribed authoritythat he has prevented by sufficient cause fromfiling the C forms intime. 'Sufficient Cause'spoken of Section 8(4) is sufficient cause whichappeals to the mind of the authority concerned andwhich enables it to allow further time withoutbothering about any onus on the assessees.Following the decision, this facility must beextended without fail. Instead of driving theassessee to go on appeal for this simple matterand getting case remanded by the appellate forumfor reopening and considering the C forms filed atthe time of nearing the appeal, the assessingofficers themselves may reopen the cases, admitthe new C forms, check on their correctness andgenuineness, and pass revised assessment orders,as long as the period does not exceed the periodof limitation. Thus, the instruction insists that'sufficient cause' spoken of section 8(4) issufficient cause which appeals to the mind of theauthority concerned and which enables it to allowfurther time without bothering about any onus onthe assessees. Hence, even if the dealer fails toexplain the reason for the delay, the respondenthas to independently apply his mind and decideabout the C forms, without insisting the onus onthe assessee." 10.The abovesaid circular itself has been basedon the basis of Arulmurugan's case [1982] 51 STC 381(mad) ; CDJ 1982 MHC 132 passed by the Full Benchof this Court. Relevant portion of the said judgmentis extracted below (pages 395 and 396 in 51 STC): "19. We do not think there is any room for theperplexity given expression to by the learnedGovernment Pleader. Given the assessingauthority's undoubted power to allow further timefor C forms to be filed on sufficient cause, therest of it is mere proceudre or follow up action.Where the assessig authority is satisfied, in agiven case, about the existence of sufficientcause, it must necessarily be followed up byappropriate action, such as reopening theassessment already completed. Perhaps therequisite corrective action can be taken byinvoking the assessing authority's statutory power of rectification of mistakes. Even otherwise, theimplementation, in appropriate cases, of the powerto allow furthre time cannot be withheld on theexucse that there is no express provision eitherin the statute or in the statutory rules forreopening the assessment. When the power is thereand the facts are there demanding its exercise,the implementation must be done as a matter ofcourse, on the doctrine of implied or ancillarypowers. Where there is a power, and where thereis a will, there will be a way. It is, however,unnecessary to pursue the line of discussionfurther, because the particular problem we areconcerned with in the two cases before us is quitedifferent. What we are asked to consider, andwhat we have been engaged in discussing so far,is whether an appellate authority has the samepower as the assessing authority to allow furthertime for accepting C forms, and not how and bywhat process the assessing authority itself couldexercise the power after the completion ofassessment. 20.We may now turn to the facts of each ofthe two individual references before us. In boththe cases, the assessee concerned did not file Cforms with the assessing authority before thecompletion of the assessments. Naturally,therefore, the turnovers in question were chargedto tax at the rate of 10 per cent, instead of atthe concessional rate of four per cent. Both theassessees appealed against their respectiveassessments. In both the cases, leave to file therelevant C forms was asked for, at the appellatestage. The Appellate Assistant Commissioner,however, declined to receive the C forms, andconfirmed the assessments. On further appealbefore the Tribunal, the assessees produced the Cforms once again. At this stage, the Tribunalentertained them. While doing so, the Tribunalfelt satisfied that there was sufficient cause fornot filing the C forms before the assessmentswere over. The final orders of the Tribunal,however, were different in the two cases. In onecase, the Tribunal set aside the assessment anddirected the assessing authority to make theassessment fresh on the basis of the C formsreceived at the appellate stage. In the othercase, without setting aside the assssment, the Tribunal forwarded the C forms to the assessingauthority, directing that authority to scrutinisethe C forms and find out if they complied with theformalities. Tribunal forwarded the C forms to the assessingauthority, directing that authority to scrutinisethe C forms and find out if they complied with theformalities. 21.Having regard to the considerations whichwe have set out in the foregoing paragraphs, wemust uphold the decision of the Tribunal in boththe cases. We hold that the Tribunal has thepower to receive C forms at the time of theappeal, for sufficient cause. The Tribunal canthen proceed to the next step of applying theconcessional rate of tax to the turnover coveredby the C forms. Or the Tribunal may remand thecase to the Appellate Assistant Commissioner. Theremand may be for the specific purpose of goinginto the question of sufficient cause. The remandmay also be loaded with a finding by the Tribunalthat there has been sufficient cause, leaving thescrutiny of the C forms alone to be undertaken onremand. The Tribunal may, if satisfied about thesufficient cause, set aside even the assessmentorder, and direct the assessing authority to re-dothe assessment, in which event there would be nooccasion for the assessing authority to go intoany question of 'delay' in filing the C forms, forwith the setting aside of the assessment the wholething is once again at large. It is needless toadd that whatever has been stated by us asrespects the Tribunal's power and the modes of itsexercise apply, mutatis mutandis, to the AppellateAssistant Commissioner in like situationsoccurring in the appeals before him." 11.In view of the above said Full Benchjudgment of this Court and also the circular datedFebruary 1, 2000 issued by the Commissioner ofCommercial Taxes, Chennai, the writ petition isallowed by setting aside the impugned orders datedDecember 6, 2015 and January 21, 2016 and directingthe respondent to accept form I filed by thepetitioner on January 19, 2016 for the sales made to"SEZ" for the assessment year 2011-2012 and passorders afresh in accordance with law. 5.In the light of the above order passed by this Court,following the Full Bench's Judgment of this Court and theCircular dated February 1, 2000 issued by the Commissioner ofCommercial Taxes, Chennai, the writ petition is allowed by https://hcservices.ecourts.gov.in/hcservices/ setting aside the impugned order dated 22.02.2016 and directingthe respondent to accept form "F" filed by the petitioner forthe assessment year 2014-2015 and pass orders afresh inaccordance with law. No costs. Connected W.M.P. is closed. Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant RegistrarnvToThe Assistant Commissioner (CT),Hosur (South) Assessment Circle,Hosur.+1cc to Mr.R.Senniappan, Advocate, S.R.No.28639+1cc to the Special Government Pleader(T), S.R.No.28525W.P. NO. 18061 of 2016PUR(CO)CA(26/05/2016)