TMI Blog2016 (3) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to consider each and every aspect on the basis of the materials available - appeal allowed by way of remand. - W.P.Nos.24879, 24880, 24115 and 24116 of 2015 and M.P.Nos.1, 1, 1 and 1 of 2015 - - - Dated:- 2-3-2016 - Mr. R. Mahadevan, J. R. Senniappan for the petitioners S. Manoharan Sundaram, Additional Government Pleader, for the respondents ORDER These writ petitions have been filed against the fresh assessment orders passed by the first respondent, for the assessment years 1997- 1998 and 1998-1999 after the matter was remanded by this Court by the orders dated 05.02.2008 and 06.02.2008. 2. The facts arising out of the writ petition in W.P.No.24879 of 2015, are as under: 2.1. The petitioner is a partnership concern and is a dealer in edible oils. The petitioner has been registered as an assessee under the TNGST Act and reported a total and taxable turnover of ₹ 2,48,48,538/- and Rs.Nil respectively, in their Annual A1 Return filed for the assessment year 1997-1998 under the TNGST Act and claimed exemption on the entire turnover. The petitioner has claimed exemption as second purchase of groundnut kernel for ₹ 90,98,160/- from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12.06.2007. 2.4. This Court, on 05.02.2008, disposed of the writ petitions directing the first respondent to pass orders on merits and in accordance with law after complying with the directions of the appellate authority in the orders dated 08.06.2007 and 12.06.2007 in A.P.Nos.42 and 76 of 2007. In pursuance of the direction issued by this Court, the petitioner on 20.03.2008 filed a letter furnishing the particulars so as to enable the first respondent to pass orders in accordance with law. 2.5. The petitioner further claimed that he had enclosed his bank details, statements and ledger accounts along with the said letter dated 20.03.2008 to the first respondent for his effective consideration in the assessment proceedings, as directed by the second respondent. While the matter stood thus, after a lapse of four years, without complying with the directions issued, another notice dated 28.01.2011 was issued by the first respondent seeking certain particulars from the petitioner so as to decide the eligibility of second sale exemption for the assessment year 1997-98. In pursuance of the notice dated 28.01.2011, the petitioner had given a detailed reply along with all the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in A.P.No.41/2007 dated 12.06.2007. Inviting the attention of this Court to the Circular issued by the Special Commissioner and Commissioner of Commercial Taxes in Acts.Cell-VI/13234/2001 dated 20.04.2001 on the basis of the guidelines issued by the Hon'ble Mr.Justice Ramanujam Committee, it is submitted that the assessing officers were advised that once a pre-assessment notice is issued, there is no time limit to pass orders, but there should not be any undue delay. But in the present case, the impugned order has been passed after a very long delay, without even giving any opportunity to the petitioner. 2.10. Stating so, the petitioner has filed the writ petition in W.P.No.24879 of 2015. Similar is the facts and circumstances in the other writ petitions. 3. The first two writ petitions, ie. W.P.Nos.24879 and 24880 of 2015, relates to the assessments made with regard to M/s.M.P.K.Venkatesan Co., for the assessment years 1997-98 and 1998-99, respectively. The other two writ petitions, ie. W.P.Nos.24115 and 24116 of 2015, relates to the assessments made with regard to M/s.M.P. Karuppanna Chettiar and Sons, for the assessment years 1997-98 and 1998-99 respectively. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to re-do the assessment afresh, with specific directions. 6.5. Thereafter, the first respondent again issued the notices dated 31.12.2007, proposing to levy tax and penalty, to which, the petitioners submitted the representations, dated 18.01.2008, requesting the first respondent to furnish a copy of the enquiry report and the details of the investigation report. 6.6. Then, the petitioners filed Writ Petitions in WP.Nos.3133, 3134, 2946 and 2947 of 2008, challenging the said notices dated 31.12.2007 and the said Writ Petitions were disposed of by this Court by the orders dated 6.2.2008 and 5.2.2008, directing the first respondent to redo the assessment afresh, as directed by the second respondent in the appeals, by the orders dated 8.6.2007 and 12.6.2007. 6.7. Thereafter, the petitioner filed representations dated 20.3.2008 to the first respondent, requesting to furnish certain particulars. 6.8. While so, after lapse of nearly four years, another notice dated 28.1.2011, calling upon the petitioners to furnish certain particulars, had been issued, to which the petitioner had given a reply dated 15.2.2011. 6.9. Thereafter, after lapse of nearly five years, the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent to furnish a copy of the enquiry report and the details of the investigation report. Meanwhile, writ petitions were also filed challenging the said notices and the first respondent was directed to re-do the assessment afresh, as directed by the second respondent in the appeals, by the orders dated 8.6.2007 and 12.6.2007. 12. Despite the representations made by the petitioners seeking to furnish certain particulars, another notice dated 28.1.2011, was issued calling upon the petitioners to furnish certain particulars, and that too, after lapse of nearly four years. Even then, the same was also replied on 15.2.2011. 13. Now, the main grievance of the petitioners is that after a long lapse of five years, the present impugned orders dated 25.5.2015 have been passed, confirming the original assessment of tax and penalty on the very same grounds and according to the petitioners, it is nothing but non-application of mind on the part of the respondents. 14. At this juncture, this Court feels it apposite to point out hereunder certain aspects, which warrant deep consideration on the sustainability of the impugned orders: 14.1. The first assessment made by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rections of the appellate authority in the orders dated 08.06.2007 and 12.06.2007 in A.P.Nos.42 and 76 of 2007. However, after a long lapse of five years from the date of receipt of reply, the present impugned orders have been passed. 14.8. Therefore, this Court is of the view that the first respondent has passed the impugned orders without following the directions issued by this Court as well as the direction issued by the second respondent on two different occasions and at the same time, the first respondent did not even consider the petitioners' reply. 14.9. For all the above reasons, the impugned orders are liable to be set aside. 15. Here, the 'delay' on the part of the Assessing Officer has played a vital role in either way. No doubt, dispensing justice has two parts, viz., one is the process of decision making and the other is implementation. To say, it is not enough if an order is passed, but the very spirit lies in implementing it. 16. Most of the cases arise as a result of failure on the part of the Government servants to discharge their statutory or constitutional duty in time. At times, the loss caused to the Government is huge, because of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide and the matters are remanded to the authorities for consideration afresh and the respondents are directed to consider each and every aspect on the basis of the materials available and pass appropriate orders upon considering their reply and after affording due opportunity of hearing to the petitioners, so as to avoid the allegations of violation of principles of natural justice, within a period of eight weeks from the date of receipt of a copy of this order. 22. While disposing of all the writ petitions as above, the following directions/guidelines are issued for strict adherence/compliance by the authorities concerned: (i) The Commissioner of Commercial Taxes should circulate this order to all the Assessing authorities and issue appropriate Circular to that effect, which is to be scrupulously followed by them. (ii) After an assessment is made in accordance with the statute, the assessing officer should only wait until the appeal period. If there is no communication from the assesse either regarding a stay order from the appellate authority or the High Court, recovery proceedings must be initiated immediately. (iii) As practice, though the assessment orders are comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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