2018 (4) TMI 1380

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....l for the parties, by a common order, writ Court, directed the Assistant Commissioner (CT) (FAC), Mettupalayam, respondent therein, to issue fresh notice and thereafter permitted the appellant/petitioner to submit a detailed explanation / objection to the proposals, and after considering the same, the respondent shall pass orders in accordance with law. Pursuant to the directions, pre-revision notice dated 12.02.2015 has been issued to the appellant/petitioner, for the assessment year 2007-08 to 2011-12, respectively. Appellant/petitioner has also submitted objections dated 06.04.2015. Thereafter, separate assessment orders 30.07.2015, has been passed, for the above years. 2. Challenging the assessment orders, appellant has filed W.P.Nos.2....

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....ion in SRC Projects Private Limited Vs. Commissioner of Commercial Taxes, Chennai and Another, reported in [2010] 33 VST 333 (Mad), wherein a Hon'ble Division Bench of this Court held that when personal hearing is sought for, the same should be offered to the assessee, before passing final orders, which has been followed by one of us [Hon'ble Mr.Justice S.Manikumar] in Shri Mariammal Fire Works Vs. Commissioner of Commercial Taxes, Chepauk, Chennai and another, reported in [2011] 38 VST 345 (Mad) and also to a decision in W.A.No.173 of 2018 dated 29.01.2018 between M/s.Delphi Automative Systems P Ltd., and The Assistant Commissioner (CT), Pammal Assessment Circle, Chennai, decided by this bench, Mr.R.Venkatraman, learned senior coun....

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....9;ble Division Bench of this Court, observed as under: "8. In order to appreciate the aforesaid contentions, this Court proposes to set out the provision of Section 16(1)(a) of the said Act, which is relevant for our consideration. "16(1)(a): Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of subsection (2), at any time within a period of five years from the date of order of the final assessment by the assessing authority, determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary and after giving....

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....n of assessment under section 16(1)(a) of the TNGST Act, 1959 a Division Bench of this court in a judgment reported in SRC Projects' case [2010] 33 VST 333; [2008-09] 14 TNCTJ 220, after extracting the relevant portion of the circular, which deals with an opportunity of personal hearing, at paragraph No. 26, of the judgment held that "... in cases where a dealer seeks for a personal hearing, such dealer should be afforded the same in all cases where the Commissioner proposes to record a finding, which is adverse to the dealer, and such adverse order to the assessee can only be made after giving the assessee a hearing". The Division Bench further held that "... the impugned order by way of revision of assessment should not have been pass....

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.... the exercise of its jurisdiction. But law in this aspect is well-settled and there are well known exceptions where a writ petition is entertained despite non-exhaustion of statutory remedy. If any one of the exceptions exists, it is open to the writ court to exercise its jurisdiction. Those exceptions are if a writ petition has been filed for an enforcement of any fundamental right where there has been a violation of principles of natural justice at the instance of an inferior authority or where the proceedings are wholly without jurisdiction or ultra vires the statute under which such proceedings have been initiated (Whirlpool Corporation v. Registrar of Trade Marks [1998] 8 SCC 1), a writ petition can be entertained. 25. In Whirlpool ....

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.... 10. In W.A.No.173 of 2018 dated 29.01.2018 between M/s.Delphi Automative Systems P Ltd., and The Assistant Commissioner (CT), Pammal Assessment Circle, Chennai, we held as follows: " In the light of the above circular, and the decision in SRC Projects Private Limited V. Commissioner of Commercial Taxes, Chennai and Another reported in (2010) 33 VST 333 (Mad), impugned order is set aside. Matter is remitted back to the Assessing Officer, to consider afresh, provide opportunity to the appellant, and pass order in accordance with law." 11. Perusal of the common order made in W.P.No.28328 to 28242 of 2015 dated 13.06.2016, does not indicate that the writ Court has adverted to the mandatory requirement of personal hearing, contemplated under....