Neycer India Limited vs Commercial Tax Officer and Another

S. Manikumar, J.—The petitioner has sought a writ of certiorarified mandamus to quash the order in R.P. No. 3 of 2007, dated September

28, 2007 on the file of the second respondent and consequently, direct the second respondent to pass orders after affording opportunity of hearing

to the petitioner in accordance with law.

Brief facts leading to the writ petition are as follows:

The petitioner-company is engaged in manufacture and sale of ceramic tiles and sanitary ware, registered under the erstwhile Tamil Nadu General

Sales Tax Act, 1959 and presently under the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as ""the TNVAT Act""). In the year

1991, petitioner-company''s net worth got completely eroded by the accumulated losses and therefore, the petitioner filed a reference u/s 15 of the

Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as, ""the SICA"") and the proceedings are still pending. While so,

the company was served with a notice dated January 22, 2007 requiring them to furnish additional security worth Rs. 1.53 crores on the ground

that the petitioners have defaulted in payment of taxes. The proposals were confirmed by the Commercial Tax Officer, the first respondent herein,

vide order dated March 1, 2007.

Aggrieved by the same, the petitioner filed revision petition in R. P. No. 3 of 2007 u/s 54 of the TNVAT Act before the second respondent

herein. The date of hearing was fixed on September 21, 2007 on which date, the counsel appearing for the petitioner filed a petition for

adjournment requesting the matter to be listed for hearing on third week of October, 2007. However, the second respondent adjourned the matter

to September 28, 2007. Again, the learned Counsel for the petitioner sent a letter seeking adjournment through fax, dated September 27, 2007 as

he had to appear before the High Court, Madras in connection with another matter. Learned Counsel for the petitioner, after filing of the petition

for adjournment had also enquired with the office of the second respondent through telephone in the morning on September 28, 2007 as to

whether his petition for adjournment was considered favourably. They were informed that the matter would be adjourned and the date of next

hearing would be communicated later. However, to their utter shock, the second respondent without appreciating the reason for seeking

adjournment has passed an order, confirming the demand for additional security made by the first respondent, albeit with reduction in quantum.

Aggrieved by the same, the petitioner has preferred the above writ petition for the relief as stated above.

Learned Counsel for the petitioner submitted that the second respondent, having acknowledged the petition for adjournment and assured that

the matter would be adjourned, ought to have given an opportunity of personal hearing as provided u/s 54 of the TNVAT Act, and therefore, the

impugned order is arbitrary and in violation of principles of natural justice. He further submitted that the second respondent ought to have

considered that the proceedings are pending before BIFR and there cannot be any coercive proceedings in view of the embargo contained in

Section 22 of the SICA Act. He further submitted that the impugned proceedings requiring additional security with a threat of cancellation of

registration certificate, when the petitioners are facing severe financial hardship, is nothing but a harassment . For the abovesaid reasons, he

submitted that the impugned order is liable to be set aside.

Mr. R. Mahadevan, learned Additional Government Pleader, submitted that the petitioner had never responded to the opportunities provided by

the department. He further submitted that neither the petitioner nor their authorised representatives appeared before the revisional authority to avail

the opportunity of personal hearing. He further submitted that as there was huge arrears of tax, in the interests of Revenue, imposition of additional

security is warranted u/s 39(5) of the TNVAT Act, 2006 and therefore, when the authority had exercised his jurisdiction by following due process

of law, the petitioner ought to have conducted the proceedings diligently. Referring to the proceedings of BIFR, dated October 11, 2007, he

further submitted that if the petitioner had approached BIFR for remedy, they ought not have collected tax from the customers and having collected

tax from their customers, they are bound to remit the same to the Government. In these circumstances, learned Additional Government Pleader

submitted that the petitioner has not approachedthis Court with clean hands and therefore, they are not entitled to the equitable remedy under writ

jurisdiction.

Heard the counsel appearing for the parties and perused the materials available on record.

The original order dated March 1, 2007 directing the petitioner to furnish additional security reads that as per Section 40(1) of the TNVAT Act,

no person, who is not a registered dealer, shall collect any amount by way of tax under this Act. The order further reads that the petitioner-

company was collecting taxes from their customers through sale invoices, but they were not remitting the same to the Government and they were

found to be a regular defaulter in payment of tax. For proper realisation of tax payable under the TNVAT Act, the petitioner-company was

requested to furnish additional security worth about Rs. 1.53 crores payable for the year 2005-06. Accordingly, a notice was issued to the

petitioner inviting them to file their objections within 15 days from the receipt of notice and they were also requested to appear in person on any

working day at 11.00 a.m., for personal hearing within fifteen days on receipt of notice. It is further evident from the impugned order that notice

was served on the petitioner on February 13, 2007 and the dealer did not file any objections to the notice. It is further observed that there was no

appearance before the registering authority, viz., the Commercial Tax Officer, Cuddalore for personal hearing. In these circumstances, to safeguard

the interest of the Revenue, the first respondent had directed the petitioner to furnish the additional security of Rs. 1.53 crores under Rule 5(6) of

the Tamil Nadu Value Added Tax Rules, 2007 in the prescribed form F.

Aggrieved by the order of the Commercial Tax Officer, Cuddalore, the petitioner has filed a revision petition in R. P. No. 3 of 2007 before the

Deputy Commissioner, Vellore Division, the second respondent herein. It is evident from the impugned order that the revisional authority had

issued summons granting opportunity to the petitioner to represent the case on September 5, 2007. The petitioner had failed to appear and sought

for an adjournment, which was granted. Subsequently, two summons were issued and served on September 21, 2007 fixing the date of hearing on

September 28, 2007. On this day, instead of appearing, the counsel for the petitioner had sent a letter to the revisional authority seeking for

adjournment, stating that he has to appear before the High Court, Madras, in connection with some other matter. The revisional authority, on

perusal of the records found that the petitioner was a regular defaulter and that they have to pay a huge arrears of tax of Rs. 3.53 crores and

passed the impugned order. Granting adjournments on fax message is certainly not followed by courts or quasi-judicial authorities. If the learned

Counsel for the petitioner was not in a position to attend the hearing, at least the petitioner could have made arrangements to appear before the

revisional authority through their representative and sought adjoumment.

Therefore, it is apparent on the face of record that the petitioner had failed to appear before both the respondents, in spite of opportunities

granted to them. Therefore, the contention of the learned Counsel for the petitioner that the respondents have failed to provide reasonable

opportunity of hearing is not tenable, as the opportunity of being heard has not been availed by the petitioner.

The submissions of the learned Counsel for the petitioner that he had received some information from the office of the second respondent that

his application for adjournment was considered is bereft of any details and the same is not acceptable. Insofar as the contention relating to the

financial status of the petitioner-company, as contended by the learned additional Government Pleader that when proceedings and pending before

BIFR, the petitioner ought not to have collected tax from the customers and having collected the tax, they are bound to remit the same to the

Government.

The tax arrears are about 3.53 crores and in order to safeguard the inter-est of the Revenue, the second respondent in exercise of his powers

u/s 39(4) of the TNVAT Act has rightly directed the petitioner to furnish additional security. It is evident from the impugned order that the

revisional authority has considered the contention of the petitioner regarding the error in calculation of quantum of the additional security and suo

moto has reduced to Rs. 50,86,179 from Rs. 1,01,72,358. While considering the merits of the case, the revisional authority has also examined the

contentions of the petitioner with reference to the decision of the Supreme Court reported in M.A. Rahman v. State of Andhra Pradesh [1961] 12

STC 392. Being quasi-judicial authority, he has considered the case on merits with reference to legal principle and also passed the favourable

orders, reducing the quantum of additional security.

For all these reasons, I do not find any material irregularity in the procedure followed by the respondents and therefore, there is no ground '' to

interfere with the impugned order. The writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also closed.