TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 558
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....ctively, while WP Nos. 9725 to 9727 of 2014 have been filed praying for a Writ of Mandamus directing the second respondent to hear and decide the appeals filed by the petitioner without insisting on the condition of pre-deposit of any part of the demand confirmed by the first respondent or furnishing of any security and without in any manner seeking to enforce the notice of demand issued by the first respondent dated 28.02.2014 for the assessment years 2009-2010, 2010-2011 and 2011-2012 respectively. 3. For the purpose of disposal of these writ petitions, first let me deal with the WP Nos. 9077 to 9079 and if they are decided, it will also cover the disposal of the other three writ petitions in WP Nos. 9725 to 9727 of 2014. 4. The petitioner company is engaged in the manufacture of mobile phones and its accessories. The petitioner unit is located in a Special Economic Zone and the products manufactured therein were either exported out of India or sold in the Domestic Tariff area. During the course of such business, the petitioner was also exporting goods out of the territory of India and executing inter-state sales from the SEZ Unit to dealers located outside the State against Fo....
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....t even giving an opportunity of personal hearing, the impugned orders have been passed by the first respondent in respect of the three assessment years. However, the fact that the first respondent has passed the orders dated 28.02.2014 came to be known to the petitioner company only when the representative of the petitioner company went to the office of the first respondent to submit certain documents. In the order dated 28.02.2014, the first respondent has indicated that already more than two months time was given to the dealer from the date of original notice viz., 22.12.2013 and after giving sufficient time, again another notice dated 24.01.2014 was issued to the petitioner but the dealer has not utilised those opportunities. Instead, the dealer requested for personal hearing. Submission of documents as proof of exemption alone will be the answer for their claim of exports to allow exemption and giving an opportunity of personal hearing will not result in any relief to the dealer. It is against this order for the three assessment years noted above, the petitioner company has filed WP Nos. 9077 to 9079 of 2014. 6. The learned senior counsel for the petitioner would vehemently co....
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....proof to substantiate their claim, while so, the assessment is not complete as contemplated under Section 22 (2) of the TNVAT Act. As contemplated under Section 22 (4) of TNVAT Act, the petitioner should have been given an opportunity of personal hearing and only thereafter, the assessment order has to be passed. If it is escaped assessment, Section 27 of the TNVAT Act can be invoked and even in that case, an opportunity of hearing is mandatory. 8. The learned senior counsel for the petitioner relied on the Division Bench decision of this Court in the case of (Tvl.SRC Projects Private Limited, rep. By its Chief Executive Officer, Salem vs. Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai and another) reported in 2010 33 VST 333 to contend that the old Section 16 of the TNGST Act is in para materia with Section 27 of the New Act. In the above decision of the Division Bench, it was also held that personal hearing is mandatory under Section 27 (1) of the Act. It was further held that Section 88 of TNVAT Act is a saving clause and Section 86 and 88 of TNVAT Act will also come to the rescue of the petitioner as it saves all the rules and regulation which remain in force ti....
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....an be passed after affording an opportunity of hearing. Further, as required under Section 22 (4) of TNVAT Act, the petitioner company failed to file their return or paid the tax under the CST Act but claimed certain exemptions on export transaction, stock transfer etc., against 'F' Forms and concessional levies against 'C' forms. Under Section 6A of CST Act, in relation to stock transfers, form ' F' declaration are prescribed documents and in relation to inter state sales at concessional tax rate under Section 8 (1) of the said Act, form C declaration are the prescribed documents and are required to be filed along with the monthly return in form I under Rule 10 (2) of the Central Sales Tax (Tamil Nadu) Rules, 1957 or any time before the final assessment of the year. However, in terms of Rule 12 (7) of the CST (Regulation and Turnover) Rules, 1957, the declaration in Form C or Form F shall be furnished to the assessing authority within three months after the end of the period to which the declaration relates. Further, under the proviso contained in Rule 10 (2) of the CST (Tamil Nadu) Rules, 1957, the petitioner, as a dealer, is permitted to retain the ....
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....tion 27 of TNVAT Act read with Sec. 9 (2) of CST Act. Therefore, according to the learned Advocate General, the assessment was made under Section 27 (1) (a) of the Act and no original order of assessment based on returns was passed upto 30.06.2012 and by virtue of the amendment made to Section 22 (2) from 19.06.2012, the assessment for the assessment year 2010-2011 was deemed to have been finalised on 30.06.2012. However, as an abundant caution, another notice dated 24.01.2014 was issued for all the assessment years in compliance with principles of natural justice calling upon the petitioner to produce the documents. 15. The learned Advocate General submitted that even as on 21.08.2012, a notice was issued to the petitioner for the assessment year 2009-2010, which was not disputed by the petitioner in the writ petition or it was challenged. On receipt of the said notice, a reply dated 24.09.2012 was sent by the petitioner and it was received on 01.10.2012. In the reply, the petitioner prayed for 3 weeks time to file the relevant declarations. Similarly, for the assessment year 2010-2011 also, a notice dated 22.12.2013 was issued to the petitioner. Therefore, the learned Advocate G....
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....e mandate provided under Section 22 (2) of the Act, however, the respondents did not comply with the provisions of Section 22 (4) of the Act which was also accepted by them by stating that an opportunity of personal hearing was not afforded to the petitioner. 18. I heard the learned senior counsel for the petitioner and the learned Advocate General appearing for the respondents. The counsel for both sides did not vehemently argue regarding the alternative prayer to grant permission to the petitioner to file an appeal without insisting on the mandatory deposit, as sought for by the petitioner in WP Nos. 9725, 9726 and 9727 of 2014. According to the learned senior counsel for the petitioner, such an alternative prayer was sought for as an abundant caution. 19. The short point for consideration in these writ petitions is as to whether the first respondent has passed the order under Section 22 (2) or 27 (2) of TNVAT Act and whether the requirement to afford an opportunity of personal hearing is different from issuing a show cause notice as contemplated under Section 27 (2) of the said Act. It is also required to be decided as to whether issuing a show cause notice would amount to suf....
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....whom it was exported, the number and date of bill of lading etc., which would prove that the dealer is not having sufficient proof in support of claim of exemption. The order also further states that even though letter dated 12.02.2014 was given by the petitioner seeking opportunity of personal hearing before passing any order adverse to them, it was stated that as the original notice was issued as early as on 12.10.2011 and after giving sufficient time another notice was also issued on 24.01.2014, the dealer has not utilised those opportunities given. It was also clearly stated that the submissions of document as proof of exemption alone will be the answer for their claim of exports to allow exemption and giving an opportunity of personal hearing will not results in any relief to the dealer. Therefore, the exemption sought for by the petitioner was disallowed. 22. Similarly, in respect of declaration form C, the assessing officer has stated that the original form C for the value of Rs.76,00,03,318/- has been filed on 10.02.2014 and a second copy of duplicate form C was filed for the value of Rs.77,55,04,377/- as against the original form C for the value of Rs.77,71,28,195/-....
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....usiness premises of the petitioner company from January 2013 to February 2013 for about 10 days, during which time, all the documents were made available by the petitioner. Nothing prevented the first respondent or his officiers from demanding for production of copies of documents to satisfy themselves as to whether the petitioner had made export sale or not. In the impugned orders of assessment, no explanation has been given by the first respondent in so far as it relates to money received by sale of goods to foreign countries. All these things could have been averted by the first respondent if a personal hearing is given during which time the first respondent could very well cross-check the documents with the relevant documents. Now, the learned senior counsel for the petitioner submits that such foreign sale cannot be treated as an inter-state sale and to levy tax thereon. It is further submitted that there was no indigeneous transaction made by the petitioner within India and the exemption claimed is only relating to foreign sale. This vital point was not considered by the first respondent while passing the impugned orders of assessment for the assessment years in question. It ....
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....g Section 22 (4) of the Act mandatorily provides for affording a personal hearing or in the alternative, since the respondents contend that the petitioner did not furnish the relevant document, there cannot be a deemed assessment. Therefore also, the provisions contemplated under Sections 22 (2) and 22 (4) have to be mandatorily followed by the respondents by giving a personal hearing, which was not done in this case. In such event, the orders of assessments, as passed by the first respondent, are liable to be set aside. It is further stated that if it is a re-assessment, as contended by the respondents, taking into consideration that they have now passed a deemed assessment pursuant to the returns filed by the petitioner, as per Section 27 (1) and (2) of the Act, notice of hearing means not a mere show cause notice but affording a personal hearing as enunciated by the Division Bench of this Court mentioned supra. 29. The decision of the Division Bench of this Court mentioned supra in the case of (Tvl.SRC Projects Private Limited, rep. By its Chief Executive Officer, Salem vs. Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai and another) reported in 2010 33 VST 333 ar....
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.... .....The Court therefore holds that the provision of Section 16 (1) (a) of the said Act has to be construed in accordance with the said circular which is by way of contemporanea expositi. So when a specific demand is made for personal hearing the reasonable opportunity of showing cause should include the same in the interest of fairness in procedure. ....It is well settted that existence of an alternative remedy does not oust the jurisdiction of a writ court under the article 226 of the Constitution. Such jurisdiction is plenary in nature. But the existence of alternative remedy operates as an automatic restrain on the discretion of the writ court in the exercise of its jurisdiciton. But law in this aspect is well-settled and there are well known exceptions where a writ petition is entertained." 31. Thus, it is seen that the Division Bench of this Court distinguished the word opportunity to show cause has to be treated as an opportunity of hearing by relying on the circular dated 20.04.2001 of the Commissioner. 32. Further, a learned single Judge of this Court in the case of ( Shri Mariammal Fire Works vs. Commissioner of Commercial Taxes, Chepauk, Chennai and anothe....
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....Court, relying on yet another decision in Sahara India vs. CIT, 2008 14 SCC 151 held that in the absence of a provision in the Income Tax Act, 1961, an opportunity of hearing was required to be given to an assessee before an order under Section 142 (2-A) Act directing special audit of his accounts was passed. It was further held that the it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving personal opportunity of being heard before an order is made, is generally read into the provision of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power confered on a statutory body or tribunal is administrative or quasi-judicial. 35. In the decision of the Honourable Supreme Court in the case of (Kesar Enterprises Limited vs. State of Uttar Pradesh and others) reported in (2011) 13 SCC 733 which was relied on by the learned senior counsel for the petitioners it was held that notwithstanding that....
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....evious operation of the said Act or 1970 Act, as the case may be, or any right, privilege, obligation or liability already acquired, accrued or incurred thereunder and subject thereto, anything done or any action taken including any appointment made, any notification, notice or order issued, any rule or regulation framed or forms prescribed and any certificate, licence, or permit granted in exercise of any power conferred by or under the said Act or 1970 Act, as the case may be, shall be valid and always as deemed to have been valid, during the period the said Act or 1970 Act, as the case may be was in force notwithstanding the repeal of the said Act or 1970 Act as the case may be. Therefore, even the Circular issued by the Commissioner will be applicable in this case. Thus, Section 16 (1) is in para materia of Section 27 of TNVAT Act. Even if the argument advanced on behalf of the respondents is accepted that personal hearing need not be given, when such an opportunity of hearing is specifically sought, it has to be extended to the petiitoner. 37. The learned Senior counsel for the petitioners relied on the decision of this Court reported in (M/s. Esteem Alloy Costings Pvt Ltd., ....
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.... whether affording a personal hearing was necessary before disposal of an application by the appellate authority for pre-deposit under the Import and Exports (Control) Act, 1947 and it does not relate to passing of final assessment order. In fact, that decision was distinguished by this Court in the decision reported in (ITC Limited case 2001 127 ELT 338 (Madras) wherein it was held that the judgment of the Apex Court has to be confined to facts of that case and nowhere the Apex Court in that case has ruled that principles of natural justice or audi alter partem will have no application in respect of an application for stay/exemption before the appellate authority. 40. In yet another decision of this Court in the case of (M/s. Rajam Offset Printers vs. The Commercial Tax Officer) reported in 1995 (8) M.T.C.R. 55 this Court had an occasion to consider that when a statute requires that a particular thing is to be done in a particular manner, it shall be done in that manner as enunciated by the Honourable Supreme Court in Shiv Kumar Chadha vs. Municipal Corporation and others (1993) 3 SCC 161. In that case, notices were given by the assessing authority calling upon the petitioner to ....