IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/09/2004
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
W.P.No.25075 of 2002
and W.P.No. 25076 of 2002
and
W.P.M.P.Nos.34430 and 34431 of 2002
M.Krishnaswamy .. Petitioner in both W.Ps.
-Vs-
1.The Registrar
Tamil Nadu Taxation
Special Tribunal,
Singaravelar Maaligai
Chennai.
2.The Appellate Assistant
Commissioner, Tirunelveli-2.
3.The Deputy Commercial Tax
Officer, Shencottah. .. Respondents in both W.Ps.
Prayer: Writ Petition under Article 226 of the Constitution of India
praying for a Writ of Certiorarified Mandamus to call for the impugned
proceedings of the first respondent in O.P.No.269 of 2001 and O.P. No.270 of
2001 dated 11.04.2001 respectively, quash the same and direct the second
respondent to take the appeal on file and dispose of the same on merits.
For Petitioner : Mr.Naveen
for Mr.J.Ganesan
For Respondents 2&3 : Mr.T.Ayyasamy
Spl.Govt.Pleader (Taxes)
:O R D E R
(Order of the Court was made by K.RAVIRAJA PANDIAN, J.)
The above writ petitions are filed, challenging the
correctness of the order of the Tamil Nadu Taxation Special Tribunal
(hereinafter referred to as ‘the tribunal’) dated 11.4.2001 made in
O.P.Nos.269 and 270 of 2001 for the assessment years 1996-97 and 1994-95
respectively. Best judgment assessments were passed against the petitioner on
2.3.2000. As the order passed has been received by the petitioner belatedly,
the petitioner filed an appeal under Section 31 of the Tamil Nadu General
Sales Tax Act along with an application for condoning the delay in filing the
appeal. The appellate authority rejected the appeal on the ground that the
delay is more than 60 days, in the sense that, the appellate authority has no
power to condone the delay if it is more than 60 days as per the statute.
That order is put in issue before the Tribunal in the above petitions in
O.P.Nos.269 and 270 of 2001. The tribunal non-suited the petitioner for
filing an appeal even after the time limit prescribed under the statute. Now
the correctness of the said order of the tribunal is challenged in the above
writ petitions.
2. Learned counsel for the petitioner sought to argue the
matter originally as against the order passed by the tribunal. However, he
has also taken us through the assessment order and contended that the entire
assessment is best judgment assessment dehorse production of any records of
the petitioner. He contended that the petitioner was not able to attend the
assessing officer because of his heart ailment. He further submitted that the
penalty component is much more than the tax component. He pointed out that
the penalty component is about 1 50% over and above the tax component.
3. We have heard the learned Special Government Pleader
(Taxes). On a perusal of the assessment order, we are of the view that the
assessment order has been made only on surmises and conjunctures and not based
on the books of accounts and the penalty is also levied more than 150% of the
tax component. Therefore, in the interest of justice, we are of the view that
the petitioner has to be given one more opportunity to produce the accounts
before the assessing officer so as to have a fair deal in the framing of
assessment. Hence, the assessment order dated 2.3.2000 in both the cases are
set aside and the petitioner is hereby directed to appear before the assessing
officer along with all the records pertaining to the assessment years on 18th
October, 2004. The assessing officer is directed to proceed further and
finalise the assessment in accordance with the provisions of the Act. If the
petitioner is not co-operating with the assessing officer as directed above,
it is open to the assessing officer to proceed further in the manner known to
law. With these observations, the writ petitions are disposed of. No costs.
KST
To
1.The Registrar,Tamil Nadu Taxation Special Tribunal,
Singaravelar Maaligai,Chennai.
2.The Appellate Assistant Commissioner, Tirunelveli-2.
3.The Deputy Commercial Tax Officer, Shencottah.