REP. BY ITS PROP. C.BHOOPATHY v. THE ASSISTANT COMMISSIONER

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 4.3.2011CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENWrit Petition No.3323 of 20111 M/S. O.S.HEALTHY CARE [ PETITIONER ] REP. BY ITS PROP. C.BHOOPATHY Vs THE ASSISTANT COMMISSIONER(CT) VELACHERY ASSESSMENT CIRCLE 19, 4TH MAIN ROAD NANGANALLUR, CHENNAI-61.[ RESPONDENT ]Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorari calling for the records of the Respondent in his proceedings in TNGST/0982482/2005-06 dated06.10.2010 and quash the same as illegal. For petitioner : Mr.S.Ramanathan For respondents : Mr.K.Radhakrishnan Government Advocate (T)

O R D E RIt has been stated that the petitioner was a registered dealer, both under the Tamil Nadu General Sales Tax Act,1959, and the CentralSales Tax Act, 1956, and has been an assessee on the file of therespondent. The petitioner had closed down the business in the year,2007. The petitioner had filed the monthly returns with therespondent, regularly, by disclosing the sales turnover for the year2005-06.

It has been further stated that the petitioner had also filedA9 returns claiming exemption on the second sales of medicines. Thepetitioner had disclosed all the necessary details, including theinvoice numbers, dates, amounts, as well as the full address of thedealers from whom the goods had been purchased. The returns filed bythe petitioner had been acknowledged by the respondent. However, therespondent had passed the impugned order, dated 6.10.2010, statingthat it had been seen from the assessment records that the exemptiongranted in favour of the petitioner, relating to the second sales of https://hcservices.ecourts.gov.in/hcservices/ medicines, was not in its favour, as the petitioner had not filed thepurchase details to prove that the goods in question had alreadysuffered tax at an earlier stage. Thus, the respondent had proposedto disallow the exemption on the turnover of Rs.1,20,73,403/- and ithad been proposed to tax at the rate of 10%.

It had also been stated, in the impugned order of therespondent, dated 6.10.2010, that in spite of a notice, dated10.6.2008, having been issued to the petitioner, inviting objections, the petitioner had not filed any objections. Therefore, therespondent had confirmed the proposal, by determining the totaltaxable turnover at Rs.1,20,73,403/-, by his impugned proceedings, dated 6.10.2010.

No counter affidavit has been filed on behalf of therespondent.

The learned counsel appearing for the petitioner hadsubmitted that the impugned order of the respondent, dated 6.10.2010,is arbitrary, illegal and unsustainable in the eye of law. Therespondent had failed to consider the fact that no notice had beenissued to the petitioner before the impugned order had been passed. The notice, dated 10.6.2008, said to have been issued by therespondent, had not been served on the petitioner. The petitioner hadclosed down the business in the year, 2007.

The learned counsel appearing for the petitioner had furthersubmitted that the respondent had failed to consider the provisionsof Section 16(1)(a) of the Tamil Nadu General Sales Tax Act, 1959,before passing the impugned order, dated 6.10.2010. The respondenthad failed to issue the notice, dated 10.6.2008, as per Rule 52 ofthe Tamil Nadu General Sales Tax Rules. As such, the impugned orderof the respondent, dated 6.10.2010, is liable to be set aside.

The learned Government Advocate appearing for the respondenthad not refuted the submissions made by the learned counsel appearingfor the petitioner.

In such circumstances, the impugned order of the respondent, dated 6.10.2010, is set aside. The respondent is permitted to issue apre-revision notice to the petitioner, in respect of the assessmentyear 2005-06. On receipt of such notice, it would be open to thepetitioner to raise its objections, if any. On receipt of suchobjections, raised by the petitioner, the respondent shall considerthe same and pass appropriate orders thereon, as expeditiously aspossible. The pre-revision notice to beissued by the respondentshall be sent to the address furnished by the petitioner in theaffidavit filed in support of the writ petition, namely, No.26,Yadhavar Street, Acharapakkam, Madurantakan Taluk. https://hcservices.ecourts.gov.in/hcservices/ The writ petition stands ordered accordingly. No costs. Connected M.P.No.1 of 2011 is closed. Sd/-Asst. Registrar//true copy//Sub Asst. RegistrarlanTo: THE ASSISTANT COMMISSIONER(CT) VELACHERY ASSESSMENT CIRCLE 19 4TH MAIN ROAD NANGANALLUR CHENNAI-61.1 cc to Mr.S.Ramanathan, Advocate, Sr.No.161301 cc to Spl. Government Pleader,(Taxes) Sr.No.16368Writ Petition No.3323 of 2011MRD {CO}TP/11.3.2011.