V. Win Textiles vs The Deputy Commercial Tax Officer and The Branch Manager, Bank of India

T.S. Sivagnanam, J.—By consent, the main writ petition itself is taken up for disposal.

The prayer in the writ petition is for issuance of writ of Certiorarified Mandamus to quash the order of assessment dated 02.03.2006.

The petitioner is a registered dealer under the provision of Central Sales Tax Act (CST) and Tamil Nadu General Sales Tax Act (TNGST). The

first respondent passed an order of assessment on 28.02.1997 for the assessment year 1994-95, in which the claim for exemption on export was

disallowed for non-production of the orders from the foreign buyers. Aggrieved by such order of assessment, the petitioner filed an appeal before

the Appellate Assistant Commissioner and the appellate authority by order dated 28.11.2005, set aside the order of assessment and remanded the

matter to the assessing officer for fresh disposal and the petitioner was directed to file the copies of the foreign buyer''s order and other records

before the assessing officer to claim exemption u/s 5(3) of the CST Act.

According to the petitioner, after the order passed by the appellate authority, the petitioner approached the assessing authority and produced

the copies of the records including the foreign buyer''s order, but the assessing authority informed the petitioner that the assessment file has not

been received from the office of the appellate authority and directed the petitioner to produce the records after intimation is received from the

office of the first respondent. While, the matters stood thus, the first respondent by order dated 02.03.2006, ordered that the original order of

assessment dated 28.02.1997 stands confirmed and demanded tax and penalty. This order dated 02.03.2006 is impugned in this writ petition.

The impugned order is assailed on the ground that it is contrary to the direction issued by the appellate authority and in violation of the principles

of natural justice as no notice or opportunity was given to the petitioner prior to passing the order. Further, it is contended that the question of

confirmation of the order of assessment dated 28.02.1997 does not arise, since the appellate authority had already set aside the same and the

matter was remanded for fresh consideration. Therefore, the impugned order is out come of non-application of mind. The learned Counsel

appearing for the petitioner would point out that in the original order of assessment dated 28.02.1997, there was no penalty levied u/s 12(3)(b) of

the TNGST Act, but in the present impugned order, the same has been included, which is also untenable.

The learned Government Advocate (Taxes) appearing for the first respondent would submit that after the order passed by the appellate

authority, the respondent was issued a notice dated 06.01.2006 to produce materials and records on or before 30.01.2006 and the notice was

returned with the endorsement, no such addressee and hence it was served by affixure in the place of the business on 01.02.2006 and since, the

dealer did not response to the notice, the impugned order of assessment was passed, confirming the original order of assessment. Therefore, the

learned Government Advocate appearing for the first respondent would submit that there is no error in the impugned order .

I have carefully considered the submissions on either side and perused the materials available on record.

At the out set, it is to be pointed out that after the appellate authority passed the order dated 28.11.2005, setting aside the order of assessment

dated 28.02.1997, the question of confirming the said order, once again does not arise. On remand the first respondent is expected redo the

exercise afresh and come to an independent conclusion. Hence, the observation in the impugned order that the original order is confirmed, cannot

be countenanced.

Rule 52(1) of the TNGST Rule 1959 provides for service of notice and clause (a) of the Rule states that the notice should be served by giving

or tendering it to the dealer or his authorized representative and clause (b) contemplates issue of notice to the residential address and clause (c) is

to the effect that if the address of the dealer is known to the assessee, the notice should be sent by registered post and such notice should be sent

to the residential address and without resorting to such procedure, the respondents cannot resort to the procedure of affixer. Thus, it is seen that

there is violation of Rule 52(1) of the Rules. Further, it is to be noted that it is the specific case of the petitioner that they are in possession of all the

documents in support of their contentions and these records were not available at the time of the original assessment and were produced before the

appellate authority and since the appellate authority was of the opinion that the genuineness and correctness of those records cannot be verified at

the appellate stage, set aside the order of assessment dated 28.02.1997 and remanded the matter to the first respondent to enable the petitioner to

produce the records. Therefore, the reason assigned by the first respondent for passing the impugned order of assessment is not sustainable. It is

therefore held that the assessee did not have due notice as contemplated under Rule 52(1) of the Rules.

In the result, the writ petition is allowed and the impugned order is set aside and the first respondent is directed to issue a notice, fixing the time

and date for the petitioner to produce the records. On the appointed date, the petitioner shall produce the records and thereafter the first

respondent after affording an opportunity to the petitioner shall pass orders on merits and in accordance with law. Consequently, connected

miscellaneous petitions are closed. No costs.