TMI Blog2017 (12) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... l decisions has observed that, in the absence of specific prohibition under the statute, for affording an opportunity of personal hearing, the Assessing Officer could afford such personal hearing, as it would help the Assessing Officer to complete the assessment in a proper manner. The impugned orders have been passed in violation of the principles of natural justice - petition allowed - decided in favor of petitioner. - Writ Petition Nos.22630 to 22636 of 2017 W.M.P.Nos. 23733 to 23739 of 2017 W.P.No.22630 of 2017 - - - Dated:- 7-12-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr C.Natarajan, Senior Counsel for Mr.Karthik Sundaram For the Respondents : Mrs.S. Narmadha Sampath Special Government Pleader ORDER Since the common issue arises in all these Writ Petitions, they were heard together and disposed of by this common order. 2. The petitioner has filed these Writ Petitions, challenging the orders passed by the first respondent/Assessing Officer, directing the petitioner to pay the differential amount of tax at the rate of 8.5%, on the sale of construction machinery, treating them as capital goods upon payment of tax at 4% as interstate sales at h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis that, batching plants will not qualify as capital goods, as they are not used within the State of Tamil Nadu, as required under Section 2 (11) of the TNVAT Act. This necessitated the petitioner to challenge the validity of Section 2 (11) of TNVAT Act along with the consequential notice, proposing to impose higher rate of tax. The Writ Petitions were entertained by the Division Bench, and an order of interim stay was granted, and consequently, the Revenue proceeded with the assessment with a right to re-open the assessment, subject to the result of the Writ Petitions. Ultimately, the Writ Petitions filed by the petitioner along with batch of other cases were dismissed by the Division Bench, by common order, dated 05.04.2016, upholding the constitutional validity of Section 2 (11) of TNVAT Act. The Special Leave Petitions filed against the order of the Division Bench, dated 05.04.2016, were dismissed by the Hon'ble Supreme Court on 17.10.2016. v) It is stated that the petitioner has filed Review Petitions as against the common order passed by the Division Bench, and the matter is pending. After the dismissal of the Writ Petitions, the first respondent issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unced, it was mentioned by the learned counsel appearing for the petitioners that, some of the Writ Petitions arose out of the revision notices, (as in the case of the petitioner), insofar as those dealers are concerned, the Division Bench granted time limit of 15 days to submit their objections, and thereafter, the Assessing Officers were directed to follow the procedure prescribed by law. Therefore, it is submitted that, when objections are submitted, the Assessing Officers were bound to consider the same and cannot issue notice of recovery without dealing with the objections, when the subject matter dealt with by the Division Bench was with regard to the constitutional validity of Section 2 (11) of the TNVAT Act. 7. Further, it is submitted that the reason for impleading the Authority for Clarification and Advance Ruling, in these Writ Petitions is on account of the observations made by the Division Bench, in para Nos. 80 and 81 of its common order, dated 05.04.2016. In the said paragraphs, the Division Bench noted that, some of the petitioners placed reliance on the order passed by the said Authority, dated 22.07.2014. The Division Bench observed that, any Ruling or Clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reported in Manu/GJ/2376/2016. Elaborating further, the learned Senior Counsel has drawn a comparison between various stages with regard Section 8 of CST Act, 1956 and sought to emphasize the points canvassed before this Court. 10. Mrs.S. Narmada Sampath, the learned Special Government Pleader for the respondents submitted that the Writ Petitions are liable to be dismissed, as the Division Bench took note of the aspect relating to the capital goods, and considered all the contentions raised by the petitioner and rendered the verdict on 05.04.2016, and the present attempt of the petitioner is nothing but to reopen the settled issue, which is not permissible. Further, it is submitted that the notice, dated 07.02.2017, whereby, the petitioner has been directed to pay the differential amount of tax at 8.5%, after giving credit to 4% of the tax already paid by the petitioner, is an offshoot of the order passed by the Division Bench, which has been referred to in the impugned notices. 11. Further, it is submitted that, in the objections filed by the petitioner, dated 06.04.2017, the contentions, which were raised before the Division Bench and rejected, were onceagain raised and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the TNVAT Act as ultravires of the Constitution of India. iii) In W.P.Nos.8759 to 8762 of 2010, the notice issued by the Assessing Officer, dated 29.03.2010, proposing to levy tax at 12.5% on the interstate of ready made concrete mixing were challenged. iv) In W.P.Nos.30064 to 30066 of 2013, the petitioner challenged the notices issued by the Assessing Officer, dated 03.06.2013, proposing to assess the sale of concrete mixing (batching) plant effected by the petitioner at 12.5%. Thus, the petitioner had approached this Court on the earlier occasion with four sets of prayers. The Division Bench, by common order, dated 05.04.2016, disposed of all the above Writ Petitions and the connected matters. The operative portion of the order is extracted herein below:- 82. Therefore, in fine, all the writ petitions are disposed of to the following effect: (i) The challenge to the validity of Section 2(11) of the Tamil Nadu Value Added Tax Act, 2006, is rejected and the prayer of the writ petitioners for declaration that Section 2(11) is ultra vires and unconstitutional, is dismissed. (ii) Since many of the writ petitions challenge not only the validity of Section 2(11), bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the proceedings of the Authority for clarification, dated 22.07.2014, but, the same appears to have been pressed into service during the course of hearing. While dealing with the said clarification, the Division Bench observed that, any Rule or Clarification issued by such an Authority cannot go contrary to the statutory provisions under Section 48-A (1) of the Act and the said Authority is entitled to clarify any point concerning the rate of tax, and the dispute before the Court was not with regard to the rate of tax, and it was with respect to the validity of the expression in the State'', appearing in Section 2 (11) of the TNVAT Act. Therefore, it was held that, reliance placed upon the Advance Ruling, dated 22.07.2014, is not of any assistance to the petitioner. The Special Leave Petitions filed against the order of the Division Bench were dismissed. Though it is stated that the Revision Petitions have been filed before the Division Bench, against the order, dated 05.04.2016, there is nothing on record to show that Revision Petitions have been entertained or any interim orders has been passed thereon, staying the operation of the order, dated 05.04.2016. 16. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically sought for an opportunity of personal hearing, which has not been afforded. The Division Bench, in several decisions has observed that, in the absence of specific prohibition under the statute, for affording an opportunity of personal hearing, the Assessing Officer could afford such personal hearing, as it would help the Assessing Officer to complete the assessment in a proper manner. 19. Thus, this Court is satisfied that the impugned orders have been passed in violation of the principles of natural justice. As pointed out earlier, the oral prayer sought for by the petitioner, seeking leave of this Court to file Review Petitions before the second respondent cannot be acceded to, in the light of the facts noted above and observations made thereon. 20. Therefore, for the reasons stated above, the Writ Petitions are allowed, the impugned orders are set aside and the first respondent is directed to consider the objections filed by the petitioner, dated 06.04.2017, afford an opportunity of personal hearing to the authorized representative of the petitioner and pass a speaking order on merits and in accordance with law. As stated above, if the first respondent is of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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