Tvl.D.Manoharan vs. The Commissioner Of Commercial
Original PDF →Facts
The petitioner, a registered dealer under the Tamil Nadu Value Added Tax Act, 2006, filed writ petitions challenging proceedings dated 11.09.2017 by the Commercial Tax Officer. The petitioner had been filing regular monthly returns which were accepted. However, a notice dated 20.11.2015 proposed to levy penalty under Section 27(3) of the Act. The petitioner requested an adjournment and later filed objections/reply dated 22.12.2015 for the tax period 2012-2013. The petitioner contended that the impugned assessment order failed to consider these objections and incorrectly stated that no reply was received. Furthermore, the petitioner claimed they were not afforded a mandatory personal hearing.
Held
The Court held that the Commercial Tax Officer had violated the principles of natural justice on two grounds. Firstly, the respondent's failure to consider the petitioner's reply dated 22.12.2015, and the assertion that no reply was received, indicated a suppression of material, making the assessment order unsustainable. Secondly, the Court found that the petitioner was not afforded a personal hearing, which is a mandatory requirement as per the Division Bench judgment in G.V. Cotton Mills Private Limited, regardless of whether the dealer explicitly requested it. The Court noted that whether the reply was actually received by the respondent was a disputed question of fact. The ratio decidendi is that a failure to consider a dealer's objections and denial of a mandatory personal hearing vitiates assessment proceedings. The impugned assessment order was quashed and the matter was remanded back to the Commercial Tax Officer for fresh consideration. The petitioner was directed to resend their reply by registered post within two weeks, and the respondent was directed to pass final orders within eight weeks after providing an adequate opportunity for objections and a personal hearing.
Key Issues
1. Whether the Commercial Tax Officer, by failing to consider the petitioner's reply dated 22.12.2015 and by stating no reply was received, acted contrary to the principles of natural justice, particularly in light of Section 22(2) of the Tamil Nadu Value Added Tax Act, 2006? 2. Whether the Commercial Tax Officer violated the principles of natural justice by failing to afford the petitioner a personal hearing, as mandated by the Division Bench judgment in G.V. Cotton Mills Private Limited vs. The Assistant Commissioner (CT)? Petitioner's arguments: The petitioner argued that their reply dated 22.12.2015 was suppressed by the respondent and that the impugned order incorrectly noted no reply was received. They further contended that the denial of a personal hearing, which is mandatory irrespective of whether requested, violated natural justice. They relied on the G.V. Cotton Mills judgment. Revenue's arguments: The judgment does not record any specific arguments made by the revenue or state.
Sections Cited
Section 27(3), Section 22(2)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORDER These Writ Petitions have been filed challenging the impugned proceedings, dated 11.09.2017 in TIN No.33795162676/2012- 2013 and 2013-2014, respectively.
It is the case of the petitioner that they are a registered dealer under the Tamil Nadu Value Added Tax Act, 2006. 3. It is also the case of the petitioner that they have been filing the regular monthly returns and their returns have also been accepted by the second respondent, under Section 22(2) of the Tamil Nadu Value Added Tax Act, 2006. By, Notice, dated 20.11.2015, the second respondent has proposed to levy penalty https://hcservices.ecourts.gov.in/hcservices/
2 under section 27(3) of the Tamil Nadu Value Added Tax Act, 2006. 4. According to the petitioner, after receipt of the Notice, they have filed their adjournment letter, dated 24.11.2015 requesting the second respondent to grant one month time to file their objections/reply for the notice issued by the second respondent relating to the assessment years 2007-08 to 2011-2012 and filed their reply/objections, dated 22.12.2015 for the assessment year 2012-2013. But, in the impugned assessment order, the second respondent has not considered the objections raised by the petitioner in his reply notice, dated 22.12.2015. In such circumstances, the instant Writ Petition has been filed by the petitioner.
Heard Mr.B.Rooban, learned counsel for the petitioner and Mr.N. Shanmugaselvam, learned Additional Government Pleader for the respondents.
The reply notice, dated 22.12.2015 was suppressed by the second respondent. In the impugned assessment order, there is no reference to the said reply notice, instead, the second respondent has observed that no reply was received from the petitioner to the notice. Further, as seen from the impugned assessment Order, the petitioner has not been afforded the right of personal hearing which is mandatory as per Division Bench Judgment of this Court in the case of G.V. Cotton Mills Private limited, represented by its Managing Director /Vs/. The Assistant Commissioner (CT), Avarampalayam Assessment Circle, 60 GSTR, 418, wherein the Division Bench has held that whether the contesting dealer requests for personal hearing or not, the right of personal hearing is mandatory. In the instant case, as seen from the impugned assesment order, no personal hearing was afforded to the petitioner. Further, whether the reply sent by the petitioner to the notice was received by the second respondent or not is a disputed question of fact. If, the petitioner is able to establish before the second respondent that reply was received by the second respondent, the said reply ought to have been considered by the second respondent, before passing of the impugned assessment Order.
For the forgoing reasons, and considering the fact that no personal hearing was afforded to the petitioner, this Court is of the considered view that the second respondent has violated the principles of natural justice.
In the result, the impugned assessment Order, dated 11.09.2017 in TIN No.33795162676/2012-2013 and 2013-2014, is hereby quashed and the matter is remanded back to the second respondent for fresh consideration in accordance with law. Since it is disputed by the second respondent that the reply notice, https://hcservices.ecourts.gov.in/hcservices/
3 dated 22.12.2015 was not received by him, the petitioner is directed to once again send a reply to the pre-revision notice by a Registered post with acknowledgement due, within a period of two (2) weeks from the date of receipt of a copy of this order to the second respondent. Thereafter, on receipt of the reply from the petitioner, the second respondent shall pass final orders, within a period of eight weeks, after giving adequate opportunity to the petitioner to place all objections available to them under law and also grant them the right of personal hearing.
With the aforesaid directions, this Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed. Assistant Registrar (CRL.SIDE) //// Sub Assistant Registrar(CS) To 1.The Commissioner of Commercial Taxes, O/o. The Principal and Special Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai – 600 005. 2.The Commercial Tax Officer, Madurai (Rural) South Assessment Circle, Commercial Taxes Complex, Dr.Thangaraj Salai, Madurai – 625 020. +2 CC to M/s.B.ROOBAN, Advocate ( SR-55017[F] dated 19/03/2019 ) +1 CC to M/s.SPL GP ( SR-55317[F] dated 20/03/2019 ) KSA W.P.(MD)Nos. 21375 & 21376 of 2017 18.03.2019 KM/(26.04.2019) 3P 8C https://hcservices.ecourts.gov.in/hcservices/
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.