Judgment · High Court

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDated:14..06..2011Coram::THE HONOURABLE MS. JUSTICE K. SUGUNAandTHE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMYWrit Appeal (MD)Nos.543 and 544 of 2011 and M.P.(MD)Nos.1 and 1 of 2011Sri Ram Candles Rep. by its Prop. R. Renganathan, No.51, Park East Street, Kovilpatty - 628 501,Tuticorin District. :Appellant in both W.As/Petitioner-Vs- 1. The Commercial Tax Officer, Kovilpatty - 1, Assessment Circle, Kovilpatty - 628 501, Tuticorin District. 2. The State Chief Information Commissioner, The Kamadhenu Co-operative Supermarket Building, 1st Floor, Teynampet (Near Vanavil), Old No.273, New No.378, Anna Salai, Chennai - 600 018. :Respondents in both W.As/RespondentWrit Appeals filed under Clause 15 of the Letters Patent against the commonorder of the learned Single Judge dated 29.04.2011 passed in W.P.(MD)Nos.60and 61 of 2011. Prayer in WP(MD)Nos.60 and 61 of 2011:Writ Petitions filed under article 226of the constitution of India, praying to issue a writ of certiorarifiedmandamus to call for the records relating to the order passed by the firstrespondent in his revision proceeding in Assessment No.TNGST 5861647/2003-04and TNGST 5861647/2004-05 dated 30.06.2010 received by the petitioner on8.11.2010 and quash the same and to direct the first respondent to make therevision of assessment proceeding for the assessment years 2003-04 and 2004-05 following to his higher authorities in his letter TNGST 5861627/2003-04and 2004-05 dated 16.06.2009.For Appellant :: Mr.A.S.Mujibur RahmanFor Respondents:: Mr.R. Karthikeyan, Additional Government PleaderJUDGMENT(Judgment of the Court was delivered by A.ARUMUGHASWAMY, J.)These Writ Appeals are directed against the common order of learnedSingle Judge dated 29.04.2011 passed in W.P.(MD)Nos.60 and 61 of 2011. 2.The said writ petitions in W.P.(MD)Nos.60 and 61 of 2011 have beenfiled by the appellant herein for issuance of Writ of CertiorarifiedMandamus to call for the records relating to the order passed by the firstrespondent in his Revision Proceedings in Assessment No.TNGST 5861647/2003-04 and TNGST 5861647/2004-05 dated 30.06.2010 received by the petitioner on08.11.2010 and quash the same and to direct the first respondent to make therevision of assessment proceedings for the assessment years 2003-04 and2004-05 following his D3 deviation proposal submitted to his higherauthorities.3.The facts of the cases are that the appellant / writ petitioner isManufacturer of Candles. The Enforcement Authorities, Kovilpatty has made asurprise inspection of the place of business on 17.12.2004 and certainirregularities were found, for which notices were issued to the appellant / https://hcservices.ecourts.gov.in/hcservices/ 2writ petitioner. The appellant herein has not availed an opportunity beforethe Assessing Officer and has not sent reply for the said notices. He hasdelayed the matter by saying that he has applied for certain informationunder the Right to Information Act and since the matter is pending, heprayed for time. However, rejecting the same, the Assessing Officer haspassed the orders impugned in the writ petitions. 4.The learned single Judge, by an order dated 29.04.2011, dismissed thewrit petitions on the ground of availability of alternative remedycontemplated under the Act. As against the said common order, these writappeals have been filed. 5.It is not in dispute that the Enforcement Authorities, Kovilpattyhas made a surprise inspection on 17.12.2004. The appellant / writpetitioner is dealing wax is also not in dispute. From a perusal of theorders of the Assessing Officers, impugned in the writ petitions, it isalleged that the appellant herein had purchased wax by using Form XVII andhe has sold it to the unregistered small manufacturers. We are of theopinion that these aspects can be considered only by the competentauthority. Of course, there is availability of alternative remedycontemplated under the Act and the same is not disputed. At present, theappellant has not filed the Appeal in time. If the writ appeals aredismissed, then the appellant has no other opportunity to put forth hisclaim before the competent authority. Bearing in mind the same, we are ofthe opinion that the order passed by the first respondent in his RevisionProceeding in Assessment No.TNGST 5861647 / 2003 - 04 and TNGST 5861647 /2004-05 dated 30.06.2010 are liable to be set aside and one more opportunitymay be given to the appellant to put forth his objections before theconcerned authority. Therefore, we direct the appellant to deposit 25% ofthe disputed tax amount viz., Rs.1,07,145/- for the assessment year 2003-04and Rs.1,30,500/- for the assessment year 2004-05 and submit his objectionsalong with a copy of this order to the concerned authority within a periodof fifteen days from the date of receipt of a copy of this order. In thatevent, the Authority is directed to consider and dispose of his objections, after affording an opportunity to him, on merits and in accordance with law, within a period of six weeks thereafter. 6.In the result, the order passed by the first respondent in hisRevision Proceedings in Assessment No.TNGST 5861647 / 2003 - 04 and TNGST5861647 / 2004-05 dated 30.06.2010 is set aside and the order of the learnedSingle Judge dated 29.04.2011 in W.P.(MD)Nos.60 and 61 of 2011 is modifiedto the extent indicated above. These Writ Appeals are ordered accordingly. However, there will be no order as to costs. Consequently, the connectedM.P.(MD)Nos.1 and 1 of 2011 are closed.Sd/-Assistant Registrar (CO)/ TRUE COPY /Sub Assistant RegistrarTo:1.The Commercial Tax Officer, Kovilpatty - 1, Assessment Circle, Kovilpatty - 628 501, Tuticorin District. 2.The State Chief Information Commissioner, The Kamadhenu Co-operative Supermarket Building, 1st Floor, Teynampet (Near Vanavil),Old No.273,New No.378,Anna Salai, Chennai-600 018.+2CC to The Special Government Pleader. Sr.Nos.18482 & 18483.+1CC to M/s.A.S.Mujibur Rahman, Advocate. SR.No.18446.RP/29.06.11/2P/6C.WA(MD)Nos.543 and 544 of 2011 and MP(MD)Nos.1 and 1 / 2011