Tvl. Sri Saraswathi General Merchant vs The Deputy Commercial Tax Officer

R. Mahadevan, J.—This writ petition is filed seeking a Writ of Certiorari to call for the records on the file of the respondent herein in TIN. 33213824395/2012-13, dated 19.12.2014 and quash the same as illegal, invalid and violative of the principles of natural justice.

Heard both sides.

The case of the petitioner, who is a dealer in general goods, is that he is an assessee under the respondent as per the provisions of the Tamil Nadu Value Added Tax Act, 2006 (in short ''the Act''). The respondent issued a notice dated 14.11.2014, alleging that the petitioner effected purchases from the dealers, whose registration was cancelled and claimed input tax credit of Rs. 30,114/- and hence, he is liable to pay the amount availed by him in terms of Section 19(5) of the Act, along with interest at the rate of 2% per month. The petitioner also submitted a reply dated 05.12.2014, denying the allegations of the respondent. However, the respondent passed the impugned order dated 19.12.2014, without affording an opportunity of personal hearing to the petitioner. Further, the petitioner submitted that since he was suffering from illness, the order of assessment was not brought to his knowledge and hence, he could not file the statutory appeal within the limitation and therefore, he is before this Court.

The learned Counsel for the petitioner submitted that the respondent issued a notice dated 14.11.2014 calling upon the petitioner to explain as to how he had claimed the input tax credit to the tune of Rs. 30,114/- when he had effected the purchases from the dealers whose registration was cancelled and that he also sent a reply dated 05.12.2014 to the same. He further submitted that the respondent without even considering the explanation offered by the petitioner, has passed the impugned order, dated 19.12.2014, wherein the petitioner''s taxable turn over was determined at Rs. 2,45,270 and also levied a tax of Rs. 35,564/- and that since the petitioner was not able to prefer the statutory appeal, on medical grounds, the limitation period was also over and further, there cannot be any addition imposed on the turn over to be determined by the respondent and also, in the notice, no such addition was proposed, however, while passing the assessment orders, addition as well as penalty were levied.

The learned Additional Government Pleader appearing for the respondent, on instructions, submitted that the respondent, on consideration of the materials available on record, has assessed the petitioner in terms of the provisions of the Act and since the alternative remedy by way of statutory appeal is available to the petitioner, the present writ petition is not maintainable and hence, prayed for the dismissal of this writ petition.

I have considered the rival submissions and perused the materials available on record.

It is the specific contention of the learned Counsel for the petitioner that in the show cause notice dated 14.11.2014, the respondent did not spell out anything about the addition proposed to be made in the impugned assessment order dated 19.12.2014 and that as per the provisions of the Act, there cannot be any addition to the turn over to be determined in the assessment order and when that being so, the respondent is not justified in determining the assessment by the impugned order. Moreover, it is the case of the petitioner that no opportunity of personal hearing was given to the petitioner to put forth his case before the respondent and also, on medical grounds, he could not prefer the statutory appeal in time.

It is, no doubt, clear that the respondent did not indicate as to the proposed addition to be made in the assessment, which, as per the provisions of the Act, is bad. In such circumstances, the impugned order passed by the respondent is liable to be interfered with, on that sole ground alone. Further, the petitioner could not avail the benefit of filing the statutory appeal in time, on the medical grounds and as of now, the limitation period was also lapsed. According to the petitioner, the respondent failed to afford an opportunity of personal hearing to the petitioner before passing the impugned order, which, is in violation of principles of natural justice. In these circumstances, this Court is of the view that the petitioner could be given one more opportunity before the respondent, to meet the ends of justice.

In fine, this writ petition stands allowed and the impugned order passed by the respondent herein in TIN.33213824395/2012-13, dated 19.12.2014, is quashed. Accordingly, the matter is remitted back to the respondent for fresh consideration, with the following directions:

"(i) The petitioner is directed to submit all necessary documentary evidence in support of his claim before the respondent within a period of two weeks from the date of receipt of a copy of this order;

(ii) On such filing of the same, the respondent shall consider the claim of the petitioner and pass appropriate orders on merits and in accordance with law, after affording due opportunity of hearing to the petitioner, within a period of four weeks thereafter.

(iii) It is also made clear that this Court has not expressed any opinion on the merits of the case of the petitioner and it is for the respondent to deal with the same in the manner known to law."

Consequently, the connected miscellaneous petition is closed. However, there shall be no order as to costs.