Gokul Builders and Estates (Madras) Ltd. vs Commercial Tax Officer, Alwarpet Assessment Circle, Chennai

Ms. K. Suguna, J.—This writ petition is filed challenging the reassessment order dated March 31, 2011. The case of the petitioner is that it is a private limited company engaged in real estate development, promotion and construction. The petitioner is also a registered dealer under the provisions of the Tamil Nadu Value Added Tax Act, 2006 and also under the provisions of the Tamil Nadu General Sales Tax Act, 1959. The case of the petitioner is that for the assessment year 2000-01, it had reported a total and taxable turnover of Rs. 1,77,02,273 and Rs. 1,09,742, respectively. According to the learned counsel for the petitioner, by proceedings dated March 3, 2003, an assessment order had been passed and the petitioner had also paid the tax due. However, by proceedings dated March 29, 2006, a pre-revision notice had been issued and the petitioner had also submitted its objections. But, without considering the same, based On the report of the enforcement wing, the impugned order has been passed. Challenging the same, the present writ petition is filed.

According to the learned counsel for the petitioner, the inspection of the enforcement wing, even as per'' the impugned order, had taken place on October 25, 2002 and according to the learned counsel for the petitioner, for the pre-revision notice dated March 29, 2006, the petitioner had filed its objections on April 15, 2010 and for the series of notices issued by the respondent on June 4, 2010, September 29, 2010 and finally on November 8, 2010, the petitioner had filed its objections on June 18, 2010, October 22, 2010 and November 25, 2010, respectively. According to the learned counsel for the petitioner, inspite of the objections filed, without considering the same, the impugned order has been passed only based on the report of the enforcement wing. According to the learned counsel, when the petitioner earlier approached this court in W.P. No. 3472 of 2008 with regard to the pre-revision notice dated March 29, 2006, this court, while disposing of the said writ petition by order dated February 11, 2008, in paragraph No. 6, had held as follows:

This fact also shall be included in the reply to be given by the auditor. The respondent shall pass final order of assessment after receiving the reply from the petitioner on or before February 25, 2008. It is made clear that the respondent shall pass orders uninfluenced by any observation that has been made by the enforcement authority.

It is the stand of the learned counsel for the petitioner that in spite of the above observation made by this court, the impugned order has been passed based on the report of the enforcement wing, without even considering the objections raised by the petitioner.

On the other hand, the learned Government advocate brought to the notice of this court, the following portion of the impugned order :

Based on the directions of the honourable High Court, in their order dated February 11, 2008, the dealers were allowed two weeks time to file their reply including production of records, if any. Further the honourable High Court has ordered the respondent, i.e., Deputy Commercial Tax Officer, Alwarpet Assessment Circle, to pass order uninfluenced by any observation that has been made by the enforcement authority. Bearing in mind the orders of honourable High Court, several opportunities were afforded to the dealers to explain their case with due reference to records, and reconcile'' the transactions found in the records recovered at the time of inspection. The dealers neither appeared earlier before the enforcement wing officers or after the issue of notice of revision. They have more relied on the judicial decisions in regard to best judgment, assessment rather than to furnish the details to corroborate the figure in the D7 records recovered.

According to the learned Government Advocate, in spite of opportunities given, the petitioner did not appear before the officer concerned. Besides, according to the learned Government Advocate, the objections raised by the petitioner had been considered before passing the impugned order. Consequently, according to him, the stand of the learned counsel for the petitioner is totally incorrect. Based on the above contentions, the learned Government Advocate sought the dismissal of the writ petition.

I have considered the above submissions of the respective learned counsel.

The main grievance of the petitioner is that the objections raised by it had not been considered before passing the impugned order. Though, as rightly pointed out by the learned Government Advocate, in the above extracted portion of the impugned order, there is a mention that the objections raised by the petitioner were considered, but, a perusal of the same reveals that what is stated therein is that the objections of the petitioner were considered. If actually, the objections had been considered, the authority would have discussed the same in the impugned order; as to why the same could not be accepted and the reasons for arriving at such a conclusion also would have been stated. But, no such reasons have been given. Merely stating that the objections were considered will not amount to, in my opinion, actually considering the objections raised by the petitioner. If this is permitted, then calling for objections and considering the same will become an empty formality. Consequently, the argument of the learned counsel for the petitioner has to be accepted. Yet another stand taken by the learned Government Advocate and even as per the above extracted portion, in spite of opportunities given, the petitioner did not appear before the officer concerned and consequently, the stand of the learned counsel for the petitioner that without proper application of mind and without considering the objections raised, the impugned order has been passed, should not be allowed to stand. I am not able to accept this argument of the learned Government Advocate for the reason that even as per the above extracted portion, what is stated is that the petitioner did not appear before the Enforcement Officer. When reassessment notice has been issued and as per the directions of this court also, objections have to be considered and when it is not pointed out before this court that any notice was issued by the respondent directing the petitioner to appear, this argument of the learned Government Advocate will not hold good. Consequently, I am of the opinion that the argument of the learned counsel for the petitioner has to be accepted. In view of this, the impugned order is set aside and the matter is remitted back to the authority concerned with a direction to pass order, after considering the objections raised by the petitioner and if warranted and if rule permits, after providing an opportunity of personal hearing to the petitioner. The writ petition is disposed of accordingly. No costs. Connected M.P. is closed.