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TMI Blog2016 (1) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 2. The common grievance of the petitioner in W.P.Nos.3084 to3087 and 3090 to 3092 of 2016 is that though common objections were submitted by the petitioner seeking copies of third party documents, an opportunity to cross-examine the dealers at other end and a personal hearing, the same have not been granted by the respondent and the contentions have not been considered by the respondent. The further grievance of the petitioner is that though the 'C' Forms and other documents have been submitted, the respondent has not considered the same and has passed the impugned proceedings. 3. Whereas the petitioner filed W.P.No.3089 of 2016 alleging that the impugned order dated 14.05.2015 has been passed without affording any opportunity and thereafter, the petitioner submitted all the statutory forms and requested the respondent to revise the earlier order. However, the same was rejected by the impugned order dated 03.09.2015 stating that the revision under Section 84 cannot be invoked for a revision under CST Act. Aggrieved thereby, the petitioner has challenged both the proceedings. 4. The grievance of the petitioner in W.P.No.3088 of 2016 is thatITC has been reversed for non-submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has made and therefore, when all the documents are available, the respondent cannot reverse the ITC claiming that transactions with registered dealers who have deviated from their routine are bogus. He submitted that though the purchase bills and vehicle particulars were submitted to the respondent, a finding has been given as if the purchase bills have not been furnished. 9. Insofar as the assessment under the CST Act for the year 2010-11 in W.P.No.3089 of 2016 is concerned, the learned Counsel submitted that the impugned order dated 14-05-2015 has been passed without notice. The learned Counsel submitted that the respondent has powers to grant further time as per the provisions of the Act. Subsequently, the form was submitted along with the objections dated 21.09.2015 and a request was sought to revise the assessment. However, the same was turned down by the respondent refusing to exercise the power vested in him without considering the provisions. He further submitted that 'C' forms can be submitted at any time even after the assessment orders are passed and once they are filed, the same have to be considered and the orders revising the assessment have to be passed. 10. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity to cross-examine the dealers, status of the 'C' Forms submitted, finding on reversal of ITC on sale of scraps. It can also be seen that the personal hearing though specifically sought, was also not given. 16. The Honourable Apex Court in the Judgment Reported in AIR 2003 SC 1984 has laid down the necessity for a detailed order in following terms: "34. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an ITA No.200-301/Coch/2013 administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Apex Court in the Judgment reported in 2010 (9) SCC 496 has held as follows: "47. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "a. Passing of Orders: Fifteen days time limit shall be given as reasonable opportunity to dealers before passing any order and it shall be reckoned from the date or service of the notice. No order shall be passed without being satisfied of the reasonable opportunity and adopting the following process. After issue of notice calling for the objections, if any further time is requested by the dealer within a period of fifteen days, it shall be examined and reply to be given to the dealer regarding granting of time or not as the case may be only if, there exists a genuine reason, Objections filed by the dealer on the pre assessment/revision notices shall be examined in each and every issue meticulously and speaking order shall be passed addressing the objections raised. In short, the speaking order which is complete shall be passed. As the provision in the TNVAT Act stipulates the conditions of granting or personal nearing, it may be intimated in the notice and it shall invariably be afforded to the dealer irrespective of whether the dealer has opted for personal hearing or not. b. Revision of Assessment Under the TNVAT Act 2006, the assessing officers usually issue orders to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is hereby quashed." 22. The petitioner has specifically sought a personal hearing. The part of the objection seeking personal hearing has also been extracted in the impugned proceedings. Unmindful of that and the instructions of the Commissioner in the Circular No 7/2014, the respondent has proceeded to pass the impugned proceedings without granting a personal hearing. The conduct of the respondent is highly inappropriate and the order is therefore clearly in violation of the principles of natural justice. 23. In respect of denial of liability regarding payments made to the enforcement wing officials, this court is not in consonance with the contentions of the learned Counsel for the respondent and the reason given in the impugned proceedings that it is only by way of afterthought , the objections have been raised. It is settled law that the assessing officer is a quasi-judicial authority and has to independently apply his mind and pass orders. The revision proceedings are to be initiated by him on the strength of the documents before him and not on the strength of the report of the enforcement wing officials. Any objections submitted by the assesse to the pre-revision notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement authorities to return the cheques along with interest stating that there is no express provision in the TNVAT Act 2006. The law officer of High Court has expressed their opinion to handle this issue carefully and not to collect cheques under duress. In such cases, Assessing officer shall collect taxes after making assessment as provision of the Act." 27. This Court in numerous cases has also directed the refund of the amounts so collected. This Court after considering various cases, in its order dated 04.11.2015 in W.P.Nos.35533 and 35534 of 2015 has held as follows: "4. Learned Counsel for the petitioners would submit that the issue involved in these writ petitions is covered by the decision of this Court in M/s.Astek Electricals and Controls Vs. The Assistant Commissioner (CT), The Commercial Tax Officer Enforcement and The Branch Manager, Canara Bank ((2014) 67 VST 321 (Mad.) and prays for allowing the writ petition. 5.This Court time and again held that there is no power vested with the enforcement wing authorities to compel the petitioners to handover the cheques and despite the same, they are collecting cheques. As rightly submitted by the learned Counsel for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in violations of the principles of natural justice, without giving point wise rebuttal to the claim of the petitioner in their objections, without independent application of mind, this Court is inclined to grant one more opportunity to the petitioner to submit the documents by setting aside the impugned proceedings. 31. Insofar as W.P No 3087/2016 is concerned, the impugned order dated 14.05.2015 has been passed without issuing any notice. As per Section 8(4) of the CST Act, the dealer is liable to produce the " c" Form from the purchaser within the prescribed time or within such further time as that authority may, for sufficient cause, permit. Therefore, there is no time limit prescribed to produce the statutory Form. 32. In the present case, before passing the impugned order, the respondent has not demanded the " c" Forms from the petitioner. When the statute enables the respondent to extend the time for production of the statutory forms, the assesse must be issued with a notice and provided with an opportunity to submit the forms. If the reasons stated for the delay are acceptable, then the authority must grant time. Nevertheless, no notice was issued before the orders wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the judgment reported in 146 STC 1 has held as under: "40. It was urged on behalf of the appellantState that declaration forms under the Central Act were not filed within the time and/or were defective. That does not in reality amount to non-compliance of a statutory provision. The respondent No.1-company was claiming exemption and, therefore, had not filed the declaration forms. Some of the forms which were filed were treated to be defective. Undisputedly, before the revisional authority a prayer was made for grant of opportunity to rectify the defects, if any. That was turned down. It is to be noted that under Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 (in short the `Registration Rules') the declaration form can be filed at a subsequent point of time and not necessarily along with returns. On an application being made before the Assessing Officer the exemption can be granted. The object of the Rule is to ensure that the assessee is not denied a benefit which is available to it under law on a technical plea. The Assessing Officer is empowered to grant time. That means that the provisions requiring filing of declaration forms along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se from filing the C forms in time. The "sufficient cause" spoken of by Parliament in Section 8(4) is sufficient cause which appeals to the mind of the authority concerned, and which enables it to allow further time without bothering about any onus on the assessee. The proviso to rule 12(7), however, is a study in contrast. The power to allow further time under this rule is severely circumscribed by the language of its proviso. This proviso is more or less fashioned after Section 5 of the Limitation Act. Under the requirement laid down by the rule-making authority, the burden is on the assesse to make out sufficient cause by explaining why he did not file, and what prevented him from filing, the C forms before the completion of the assessment. What is more, it is for the assessing authority to be satisfied about the existence of sufficient cause and its having prevented the assessee from filing the declarations within time. The difference between the two provisos is not merely one of language or of emphasis. The difference lies in the basic approach to the substance of the power to allow further time. Under the statutory provision, the prescribed authority can allow further time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessee seeks to file C forms beyond the stage of assessment, the relative power which the concerned authority should invoke is the power defined in the proviso to Section 8(4) and not the power defined in the proviso to rule 12(7). 19. We do not think there is any room for the perplexity given expression to by the learned Government Pleader. Given the assessing authority's undoubted power to allow further time for C forms to be filed on sufficient cause, the rest of it is mere procedure or follow up action. Where the assessing authority is satisfied, in a given case, about the existence of sufficient cause, it must necessarily be followed up by appropriate action, such as reopening the assessment already completed. Perhaps the requisite corrective action can be taken by invoking the assessing authority's statutory power of rectification of mistakes. Even otherwise, the implementation, in appropriate cases, of the power to allow further time cannot be withheld on the excuse that there is not express provision either in the statute or in the statutory rules for reopening the assessment. When the power is there and the facts are there demanding its exercise, the implemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 146 STC 1, wherein it is held as follows: "23. ...That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 24.Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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