Writ Petition No. 8166 of 2012 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 29-3-2012CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.8166 of 2012M/s.Sri Balaji Auto Spares, Rep. By its Proprietor – V.Ramaraju,R.P.R.Complex, Behind Jaya Theatre, No.28/C/5, M.M.Road, Gugai, Salem-636 .. Petitioner. Versus1. The Assistant Commissioner (CT),Annadhanapatty Circle, Salem.2. The Commercial Tax Officer, Enforcement Group IV, Salem... Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Mandamus, directing the first respondentto refund an amount of Rs.5,35,386/- forcibly collected vide Chequebearing Nos.493793, 493794 and 493795 (all cheques drawn onU.co. Bank, Salem) dated 19.10.2011 from the petitioner at the time ofinspection on 19.10.2011 by the officials of the 2nd respondent as perthe petitioner's representation dated 12.11.2011. For Petitioner : Ms.R.HemalathaFor Respondents : Mr.S.Kanmani Annamalai Government Advocate (Taxes)

O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing on behalf of the respondents. 2. It has been stated that the petitioner is a dealer, registered as an assessee on the files of the Assistant Commissioner(CT) Annadhanapatty Circle, Salem, the first respondent herein, underthe Tamilnadu Value Added Tax Act, 2006, and the Central Sales TaxAct, 1956. https://hcservices.ecourts.gov.in/hcservices/

It has been further stated that, on 19.10.2011, the secondrespondent, along with his officials, had conducted a spot inspectionat the petitioner’s business premises and had verified the variousrecords maintained by the petitioner, in the course of its business. Based on the letter issued by the Joint Commissioner (CT) Salem, theofficials attached to the office of the second respondent hadconducted an audit, in terms of Section 64(4) of the Tamilnadu ValueAdded Tax Act, 2006.

It had been further stated that, at the time of theinspection, it had been pointed out that there was an omission on thepart of the petitioner to pay tax, in respect of the assessment years2007-2008 to 2009-2010, as per the provisions of the Tamilnadu ValueAdded Tax Act, 2006. In spite of the explanation submitted by thepetitioner, the officials from the office of the second respondenthad forcibly collected three cheques, drawn on the UCO Bank, Salem, bearing Cheque Nos.493793, 493794 and 493795, dated 19.10.2011, for atotal sum of Rs.5,35,386/-.

It had been further stated that the powers conferred, under Section 64(4) of the Tamilnadu Value Added Tax Act, 2006, does notprovide the power or the authority to the respondents to collect thetax, said to be payable by the petitioner. The Enforcement Wingofficials had no jurisdiction to collect tax at the time of theinspection, without verification of the monthly returns, before thecompletion of the assessment. In such circumstances, the petitionerhas preferred the present writ petition before this court, under Article 226 of the Constitution of India, praying for a Writ of Mandamus, directing the first respondent to refund an amount ofRs.5,35,386/-, forcibly collected from the petitioner, vide ChequeNos.493793, 493794 and 493795, dated 19.10.2011, 6. The learned counsel appearing on behalf of the respondentshad not refuted the averments made on behalf of the petitioner. 7. In view of the above, the first respondent is directed toreturn the cheques, bearing Nos.493793, 493794 and 493795, dated19.10.2011, to the petitioner, within a period of ten days from thedate of receipt of a copy of this order, as the respondents and theirofficials do not have any power or authority to collect the chequesat the time of the inspection of the premises of an assessee. However, it is made clear that it would be open to the firstrespondent to pass appropriate assessment orders, in respect of theassessment years 2007-2008, 2008-2009 and 2009-2010, as per therelevant provisions of law, within a period of four weeks from thedate of receipt of a copy of this order. The writ petition is orderedaccordingly. No costs. Sd/Asst. Registrar/true copy/Sub Asst. Registrarcsh https://hcservices.ecourts.gov.in/hcservices/ To1. The Assistant Commissioner (CT),Annadhanapatty Circle, Salem.2. The Commercial Tax Officer, Enforcement Group IV, Salem.+ 1 cc to Special Government Pleader SR.22175+ 1 cc to Mrs.R. Hemalatha, Sr.21110Writ Petition No.8166 of 2012UG(CO)Eu 3.5.12