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2015 (12) TMI 1195 - MADRAS HIGH COURT

2015 (12) TMI 1195 - MADRAS HIGH COURT - TMI - Challenge to assessment order - When there are certain legal issues which the 1st appellate authority had failed to consider - Escapement of turnover under Section 27(1)(a) of the TNVAT Act - Best Judgment assessment - Held that:- Petitioner is permitted to challenge the assessment orders dated 15.11.2012 before the 2nd respondent, within a period of four weeks from the date of receipt of a copy of this order. The petitioner shall comply payment of .....

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weeks thereafter. Further making it clear that till the disposal of the appeals, there shall not be any recovery. - Petition disposed of. - W. P. Nos. 38062 to 38067 of 2015 and M. P. Nos. 1 & 2 of 2015 - Dated:- 30-11-2015 - The Honourable Mr. Justice R. Mahadevan, J. For the Petitioner : Mr. N. Inbarajan For the Respondents : Mr. S. Manoharan Sundaram, AGP ORDER Mr. S. Manoharan Sundaram, learned Additional Government Pleader, takes notice for the respondents and with their consent, the main w .....

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irect the 2nd Respondent to hear and dispose of A.P.No.164 165 & 166/2015 VAT (2007-08) (2008-09) (2009-10) respectively on its merits. 3.1 The petitioner being a Company incorporated under the Companies Act, 1956, a registered dealer under the provisions of TNVAT Act and CST Act on the files of the 1st respondent, is engaged in the business of execution of various types of works contracts inside the State of Tamil Nadu. During the assessment years in question viz., 2007-08 to 2009-10, the p .....

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had inter-state purchases, which also fell under both categories, i.e., 4% and 12.5%. The purchases and transfers were duly reported by the petitioner and applicable taxes were paid. 3.3 Further, according to the petitioner, finding errors in the monthly returns for the month of April 2007, the petitioner also filed revised return for the month on 16.07.2007 and thus the monthly returns reflected the correct and actual state of affairs. The petitioner would state that the returns so filed compl .....

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er by stating that they are in a position to substantiate and support the returns filed by them. 3.5. However, according to the petitioner, by notice dated 02.08.2010, the 1st respondent required the petitioner to reconcile and report their correct taxable turnover, failing which, they were required to pay a sum of ₹ 3,14,79,442/- for all the assessment years in question. Accordingly, the petitioner submitted a letter dated 28.08.2010 furnishing all details for the three assessment years s .....

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nover. The petitioner, having done so, vide their letter dated 28.08.2010, if the 1st respondent found that to be incorrect, for any reason, he ought to have issued a proper show cause notice. Thus, according to the petitioner, the impugned proceedings suffers from gross violation of the principles of natural justice. 3.6 Upon receipt of the impugned orders dated 15.11.2012, since the first respondent has not taken into account the details furnished by the petitioner, thought it fit to file appl .....

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opy of the said order. However, on the bona fide belief that the petitioner would be in a position to challenge the original orders dated 15.11.2012, as revised by orders dated 15.05.2014 by way of statutory first appeals under Section 51 of the TNVAT Act, the petitioner preferred appeals in A.P.Nos.164 to 166 of 2015 before the Appellate Deputy Commissioner (CT) Appeals, Chennai, the 2nd respondent herein. However, by orders dated 30.09.2015, the 2nd respondent has dismissed the appeals as barr .....

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st proviso to Section 22(2) of the TNVAT Act, the 1st respondent, ought to have issued a show cause notice after 30.06.2012, as required by proviso to Section 27(2) of the TNVAT Act. 4.2 Further, according to the learned counsel for the petitioner, the 1st respondent has purported to exercise the power under Section 27(1)(a) of the TNVAT Act, he ought to have formed the view that the turnover has escaped assessment after the completion of the deemed assessment on 30.06.2012, however, no such vie .....

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view, the 1st respondent could not have completed any proceeding under Section 27(1)(a) of the TNVAT Act and since those jurisdictional facts are absent as far as the case of the petitioner is concerned, the impugned assessment orders are clearly without jurisdiction and hence the same was questioned before the appellate authority. 4.4. Further, according to the learned counsel for the petitioner, although a power to make a best judgment assessment is available under Section 27(1)(a) of the TNVA .....

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since the impugned assessment orders dated 15.11.2012 fall foul of the principles laid down in the said Judgment of the Hon'ble Supreme Court, the same are therefore, nullity. 4.5 Adding further, learned counsel for the petitioner would submit that the 1st respondent has committed an error apparent on the face of the record in totally ignoring the revised returns filed by the petitioner. He would further submit that the 1st respondent has omitted to see that prior to Tamil Nadu Act 23 of 201 .....

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assing of the revised proceedings dated 15.05.2014 by the 1st respondent, the only effective and operative order in force in the eyes of law was that order and hence the petitioner is entitled to challenge the correctness of the demands contained in the orders dated 15.11.2012, as revised by the proceedings of the 1st respondent dated 15.05.2014. That apart, according to him, since the appeals were filed within 30 days of the receipt of the orders dated 15.05.2014 passed by the 1st respondent, t .....

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here is an effective, efficacious alternative remedy available to the petitioner before the Tribunal and hence the writ petitions are not maintainable. 6. At this juncture, learned counsel for the petitioner would submit that since the legal issues are raised, which the appellate authority has failed to consider, if the petitioner is permitted to challenge the orders dated 15.11.2012 before the appellate authority, that would serve the purpose and would meet the ends of justice both legally as w .....

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