The State Tax Officer, Gudiyatham(East) Assessment Circle, Gudiyatham v. Chief Commissioner Of Income Tax (Osd) Andanother

In the High Court of Judicature at Madras Coram : The Honourable Mr.Justice T.S.SIVAGNANAM Writ Petition Nos.11255 to 11260 of 2018 &WMP.Nos.13158 to 13163 of 2018 Tvl.Dharani Recreation Club, rep.by its Proprietor T.Lakshmipathy...Petitioner in all WPsVs The State Tax Officer, Gudiyatham(East) Assessment Circle, Gudiyatham. ...Respondent in all WPs PETITIONS under Article 226 of The Constitution of Indiapraying for the issuance of Writs of Certiorari to call for therecords on the files of the respondent respectively inR.C.B1/1265/2016/Assessment 12-13, R.C.B1/ 1265/2016/Assessment13-14,R.C.B1/1265/2016/Assessment14-15,R.C.B1/1265/2016/Assessment 15-16, R.C.B1/1265/2016/Assessment 14-15and R.C.B1/1265/2016/Assessment 15-16, all dated 12.1.2018 andquash the same as being contrary to the principle laid down bythis Court in the judgment reported in (2007) 295 ITR 303 (Mad.)(V.Selladurai Vs. Chief Commissioner of Income Tax (OSD) andanother). For Petitioner :Mr.S.Kanmani Annamalai For Respondents :Mrs.G.Dhana Madhri, GA COMMON ORDER Mrs.G.Dhana Madhri, learned Government Advocate acceptsnotice for the respondent. Heard both. By consent, the writpetitions are taken up for joint disposal. 2. The petitioner, which is a recreation club, isregistered on the file of the respondent under the provisions ofthe Tamil Nadu Value Added Tax Act, 2006. In these writpetitions, the petitioner has challenged the assessment ordersdated 12.1.2018 passed by the respondent for the assessmentyears 2012-13, 2013-14, 2014-15 and 2015-16. 3. The petitioner has raised two contentions, firstlystating that at the time of inspection, the petitioner pad taxto the Inspecting Officers, which was though noted by therespondent in the impugned orders dated 12.1.2018 while https://hcservices.ecourts.gov.in/hcservices/ computing the tax payable, credit has not been given to thepayment made. Secondly, it is submitted that when the tax hasalready been paid at the time of inspection even prior to theissuance of show cause notices, penalty under Section 22(5) ofthe said Act should not be imposed. In this regard, the learnedcounsel for the petitioner has relied upon the decision of thisCourt in the case of M/s.Saravana Super Market, Vandavasi Vs.CTO, Vandavasi, Tiruvannamali District [W.P.Nos. 35019 and 35020of 2016 dated 01.12.2016]. 4. On perusal of the impugned orders, this Court finds thatthe respondent stated that for the defects noticed, an offencewas booked and compounded in a sum of Rs.2,000/- only and thedealers have admitted the omissions and paid the tax. Havingmade such a statement in the impugned orders of assessment, therespondent could have verified as to whether the tax has beenpaid. However, the dealer is also to be partially blamed becausethey did not respond to the notices issued by the AssessingOfficer nor produced proof for payment of tax. 5. The second aspect is that if the tax has already beenpaid even prior to the notices dated 26.12.2016, levy of penaltyunder Section 22(5) of the said Act would not arise. This has tobe borne in mind while doing reassessment. 4. On perusal of the impugned orders, this Court finds thatthe respondent stated that for the defects noticed, an offencewas booked and compounded in a sum of Rs.2,000/- only and thedealers have admitted the omissions and paid the tax. Havingmade such a statement in the impugned orders of assessment, therespondent could have verified as to whether the tax has beenpaid. However, the dealer is also to be partially blamed becausethey did not respond to the notices issued by the AssessingOfficer nor produced proof for payment of tax. 5. The second aspect is that if the tax has already beenpaid even prior to the notices dated 26.12.2016, levy of penaltyunder Section 22(5) of the said Act would not arise. This has tobe borne in mind while doing reassessment. 6. For the above reasons, the writ petitions are disposedof by directing the petitioner to treat the impugned orders ofassessment as show cause notices and submit their objectionswithin 15 days from the date of receipt of a copy of this order,along with proof to show that they paid tax much prior toissuance of the show cause notices dated 26.12.2016. On receiptof the reply from the petitioner, the respondent shall afford anopportunity of personal hearing, verify the correctness of thestand taken by the petitioner and pass fresh orders on meritsand in accordance with law. While doing so, the respondent shallbear in mind the legal aspect as indicated in the precedingparagraph. Till fresh orders are passed in terms of the abovedirections, no coercive action shall be initiated against thepetitioner for recovery of tax and penalty as quantified in theimpugned assessment orders. No costs. Consequently, theconnected WMPs are closed. Sd/-Assistant Registrar(CS-IV)//True Copy// Sub Assistant Registrar ToThe State Tax Officer, Gudiyatham (East) Assessment Circle, Gudiyatham. +1cc to Mr.S.KANMANI ANNAMALAI, Advocate, S.R.No. 32056+1cc to the Government Pleader, S.R.No. 32681 WP.Nos.11255 to 11260 of 2018&WMP.Nos.13158 to 13163 of 2018 MR(CO)TR(16/05/2018)