M/S.Ans Indotrade Enterprise Private Limited vs. The Assistant Commissioner (St)
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The petitioner, M/s. Ans Indotrade Enterprise Private Limited, filed a writ petition challenging an order dated 29.12.2023 passed by the Assistant Commissioner, Pudukottai-I Assessment Circle. This order confirmed a demand proposed in a show cause notice dated 29.09.2023 for the assessment year 2017-18. The petitioner contended that expenses incurred were wrongly treated as taxable turnover, leading to an arbitrary demand, and sought an opportunity for a fresh assessment with a personal hearing. The respondent argued that the writ petition was time-barred due to latches and that the appellate remedy was also time-barred, citing Supreme Court decisions.
Held
The Court decided to grant the petitioner an opportunity to ventilate their grievance before the respondent on terms. The impugned order dated 29.12.2023 was quashed and the case was remitted back to the respondent for a fresh order on merits. The petitioner was directed to deposit 20% of the disputed tax confirmed by the impugned order from their Electronic Cash Ledger within thirty days of receiving the order. The quashed order was to be treated as an addendum to the show cause notice. The petitioner was also directed to file a consolidated reply within thirty days, after which the respondent was to pass a final order expeditiously, preferably within three months. The Court clarified that if the petitioner failed to comply with the directions, the respondent could proceed as if the writ petition was dismissed. The petitioner was to be heard before the final order. The issue of whether the writ petition was fundamentally time-barred was not explicitly decided, but the Court chose to grant relief on terms.
Key Issues
1. Whether the impugned order dated 29.12.2023, passed by the Respondent, is liable to be quashed for gross violation of principles of natural justice, specifically for not providing the petitioner with an adequate opportunity of a personal hearing as per the provisions of the GST Act, 2017? Petitioner's arguments: The petitioner argued that the demand was confirmed arbitrarily based on the profit and loss account, where expenses were treated as taxable turnover. They claimed a lack of proper opportunity to explain their case and sought a fresh assessment. The petitioner also submitted a copy of a letter with an acknowledgement seal, which was disputed by the respondent. Respondent's arguments: The respondent contended that the writ petition was hopelessly time-barred due to latches, relying on the Supreme Court's decision in Assistant Commissioner (CT) LTU, Kakinada and others vs. Glaxo Smith Kline Consumer Health Care Limited. They further argued that the appellate remedy under Section 107 of the GST Enactments was also time-barred, citing Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others.
Sections Cited
Section 107
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Before: and
The petitioner is before this Court as against the impugned order, dated 29.12.2023 passed by the respondent for the assessment year 2017-18. By the impugned order, the demand proposed in show cause notice in DRC 01, dated 29.09.2023 has been confirmed.
The petitioner was not only issued with personal hearing notice electronically, but also manually. In fact the case was listed for personal hearing on 25.12.2023, on which date the petitioner appears to have appeared and requested time for filing reply and for personal hearing.
The learned counsel for the petitioner has filed a copy of the letter bearing the acknowledgement seal of the respondent which is disputed by the respondent. The case of the petitioner is that demand has been confirmed based on the profit and loss account. It is submitted that expenses incurred have been treated as taxable turn over of the petitioner and tax has been demanded in the 2/6 https://www.mhc.tn.gov.in/judis impugned order. It is submitted that the impugned order has confirmed an arbitrary demand on the petitioner and therefore, the petitioner may be given one opportunity to explain the case afresh.
The above submission is opposed by the learned Government Advocate for the respondent, on the ground that the Writ Petition is hopelessly time barred and therefore, liable to be dismissed, on account of latches, in the light of the decision of the Hon'ble Supreme Court in the case of Assistant Hon'ble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others reported in (2008) 3 SCC 70 and submitted that this Writ Petition is liable to be dismissed.
Having considered the arguments advanced by the learned counsel for the petitioner and the learned Government Advocate for the respondent, the 3/6 https://www.mhc.tn.gov.in/judis petitioner can be given an opportunity to ventilate his grievance before the respondent on terms. Therefore, the petitioner shall deposit 20% disputed tax confirmed by the impugned order from Electronic Cash Ledger within a period of thirty (30) days from the date of receipt of copy of this order. The impugned order, dated 29.12.2023 passed by the respondent is quashed and the case is remitted back to the respondent to pass a fresh order on merits. The impugned order which stands quashed shall be treated as Addendum to the Show Cause Notice in DRC 01, dated 29.09.2023. 7. The petitioner shall file a consolidated reply within a period of 30 days from the date of receipt of copy of this order. The respondent shall thereafter proceed to pass a final order on merits and in accordance with law, as expeditiously as possible, preferably, within a period of three (3) months from the date of reply to be filed by the petitioner. It is made clear that in case the petitioner fails to either file a reply or deposit the amount as directed above, the respondent is at liberty to proceed against the petitioner, as if this writ petition had been dismissed today in limine. It is needless to state, the petitioner shall be heard before passing the final order. 4/6 https://www.mhc.tn.gov.in/judis
In view of the above, this Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. 02.08.2024 NCC : Yes / No Index : Yes / No Internet : Yes gbg To The Assistant Commissioner, Pudukottai-I Assessment Circle, Commercial Taxes Buildings, Pudukottai District. 5/6 https://www.mhc.tn.gov.in/judis C.SARAVANAN, J.
gbg
2024
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Reproduced from the public record of the Madras High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.