ORDER
L. Palamalai, Administrative Member
1. The prayer in the original petition is to set aside the orders of the third respondent in Assessment Order No. 5860004/1997-98, dated January 18, 2001 and the order in Assessment No. 5860004/1997-98, dated February 27, 2001 passed under Section 14 of the Tamil Nadu General Sales Tax Act, 1959 and to direct the third respondent to reopen the assessment as per the accounts produced on February 15, 2001. The facts leading to the present original petition are the following :
The assessee reported a total turnover of Rs. 1,87,87,961 and a taxable turnover of Rs. nil in the returns filed for the assessment year 1997-98. The assessee did not produce the accounts for several summons issued and therefore, a best judgment pre-assessment notice was issued proposing to disallow the claim of exemption and to fix the total and taxable turnover at Rs. 1,87,87,961, apart from penalty under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959. After receipt of the notice, several adjournment petitions were filed on several occasions, seeking time to produce the accounts, but they did not produce the accounts and therefore, the proposals were confirmed, levying tax and penalty as proposed in the pre-assessment notice. The final assessment order dated January 18, 2001 was served on the assessee on January 31, 2001. Immediately on February 1, 2001, a revised return was filed showing the total turnover as Rs. 1,87,64,191 and the taxable turnover as Rs. nil and seeking reopening of the assessment under Section 14 of the Tamil Nadu General Sales Tax Act, on the ground that the partner of the firm, Mr. D. Jeyaseelan, who was in-charge of the tax matters, was ill and therefore, the accounts could not be produced for final check and in such circumstances, considering the doctor’s certificate enclosed with the petition, the assessment may be reopened under Section 14 of the Tamil Nadu General Sales Tax Act, 1959. Thereafter, the assessing authority called for the documents on February 15, 2001 and statements were filed along with records. Thereafter, the assessing authority passed an order on February 27, 2001 by stating as follows :
As the submission of the revised return by you for the year 1997-98 is not beyond your control, your request to reopen the assessment under Section 14 of the Act could not be complied with.
2. The present original petition is against the order passed by the assessing authority declining to reopen the assessment under Section 14 of the Tamil Nadu General Sales Tax Act.
3. Mr. M. Md. Ibrahim Ali, learned Counsel for the petitioners, contended that the petitioners printed bus tickets and therefore, the transactions are to be treated as works contract and not as sales. Though the assessing authority chose to issue pre-assessment notice by disallowing the exemption, the petitioners sought time to produce the accounts. Though the final hearing was fixed as December 15, 2000 the assessment order was made without giving reasonable opportunity and that the direction of the Principal Commissioner and Commissioner of Commercial Taxes clarifying the transactions as works contract, was not followed by the assessing authority. On receipt of the final assessment order, a revised annual return was filed along with the doctor’s certificate for the illness of the partner of the firm, who was in-charge of the tax matters, on February 1, 2001 with a request to reopen the assessment under Section 14 of the Tamil Nadu General Sales Tax Act. Though the assessing authority called for records on February 15, 2001 and perused the records, he passed orders on February 27, 2001, by merely stating that the assessment cannot be reopened under Section 14 of the Act. Thus, the summary order passed without giving any reasons, is clearly in violation of the principles of natural justice and therefore, the assessment order as well as the order passed on February 27, 2001 declining to reopen the assessment under Section 14 of the Tamil Nadu General Sales Tax Act, have to be quashed.
4. On a notice of motion, the learned Government advocate has produced the assessment file. On perusing the assessment file, it is seen that the petitioners have not chosen to produce the accounts inspite of several opportunities granted. Only in that context, the assessing authority proposed to disallow the claim of exemption and to assess the petitioner on a total and taxable turnover of Rs. 1,87,87,961. Even after the receipt of the pre-assessment notice dated March 31, 1999 on April 8, 1999, the petitioners have been seeking time to produce the accounts. In the letter dated April 13, 1999, time was sought to produce the accounts on April 30, 1999. For the notice dated August 11, 1999, because of the illness of the accountant, another date was sought. Again, for the notice dated September 8, 2000, another date was sought, because on the date of hearing, namely, September 15, 2000, the accountant would be attending the income-tax hearing. On October 5, 2000, a date in the first week of November, 2000 was sought to produce the accounts. Though the assessing authority fixed the date of hearing as November 10, 2000, again time was sought, as the accountant would be attending the income-tax hearing. Again on December 15, 2000, Mr. D. Jeyaseelan, the partner of the firm, informed the assessing authority that as the accountant was on leave, another date of hearing may be fixed. Only because of the attitude of the petitioners in seeking adjournment, but not producing the accounts, the assessing authority finally passed orders on January 18, 2001. When this best judgment assessment order was served on January 31, 2001, immediately, a return called “revised annual return” declaring the same nil taxable turnover and showing the total turnover as Rs. 1,87,64,191, was filed with the doctor’s certificate stating that Mr. D. Jeyaseelan, partner of the petitioner-firm, was under medical care from December 10, 2000 to December 30, 2000 and that he was advised bed rest up to January 30, 2001. Though the assessing authority called for the accounts on February 15, 2001, on the basis of the request to reopen the assessment under Section 14 of the Tamil Nadu General Sales Tax Act, she passed an order on February 27, 2001 by stating that the revised return filed for the year 1997-98 could not be considered as beyond the control of the petitioner and therefore, the reopening of the assessment sought under Section 14 of the Act cannot be complied with.
5. The point for consideration is whether the orders in this case have been passed in accordance with law and that there was any violation of the principles of natural justice, as contended by the learned Counsel for the petitioners. Apparently, as regards final assessment order passed on January 18, 2001, there was issue of pre-assessment notice indicating the rejection of claim of exemption, in the absence of accounts and that the final assessment order was passed after giving several opportunities to produce the records so as to reconsider the proposal in the notice. Therefore, there was no violation of any principle of natural justice or lack of jurisdiction to pass the order. If the petitioner was aggrieved against the final assessment order passed in accordance with law, he should have approached the first appellate authority. Without doing so, on the very next day on receipt of the final assessment order, the petitioners have chosen to approach the assessing authority for reopening the assessment under Section 14 of the Tamil Nadu General Sales Tax Act. The relevant portion of Section 14 of the Tamil Nadu General Sales Tax Act, 1959 reads as follows :
14. Fresh assessment in certain cases.–(1) Any dealer assessed under Sub-section (2) of Section 12 may, within a period of thirty days from the date of service of the assessment order, apply to the assessing authority for reassessment, along with the correct and complete return as prescribed. On such application, the assessing authority shall, if it is satisfied that the failure to submit the return in time or the submission of the incorrect or incomplete return was due to reasons beyond the control of the applicant, cancel the assessment made and make a fresh assessment on the basis of the return submitted :
Provided that no application shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of tax admitted by the applicant to be due or any such instalment thereof as might have become payable, as the case may be.
6. According to Section 14 of the Act, reopening of an assessment passed under Section 12(2) of the Tamil Nadu General Sales Tax Act can be resorted to, if the best judgment assessment was on the basis of failure to submit the return in time or the submission of the incorrect or incomplete return, which was beyond the control of the assessee. However, in the present case, as observed supra, the best judgment assessment under Section 12(2) of the Act was resorted to, because the assessee failed to produce the accounts inspite of several opportunities given. In fact, even after the issue of pre-assessment notice, inspite of several opportunities given, the assessee has not chosen to produce the accounts. It is not a case of failure to submit the return in time or a case of failure to submit incorrect or incomplete return, which was beyond the control of the assessee. In fact, even on February 1, 2001, the assessee only reported a nil taxable turnover. The best judgment assessment in this, case has arisen, because of the failure on the part of the assessee to produce the accounts inspite of several opportunities given. In fact, on several occasions, adjournment was sought, because of the absence of the accountant and in such circumstances, the medical certificate produced regarding the illness of the partner of the firm so as to reopen the assessment, could not be the basis at all, in terms of Section 14 of the Tamil Nadu General Sales Tax Act. According to Section 14 of the Act, reopening of assessment would be done, only if the assessing authority was satisfied that the failure to submit return in time or submission of incorrect or incomplete return was due to reasons beyond the control of the applicant. In this case, the assessing authority, though called for the accounts in pursuance of the application filed on February 1, 2001, she has clearly passed an order on February 27, 2001 stating that the request to reopen the assessment under Section 14 of the Act cannot be complied with, inasmuch as the submission of the revised return for the year 1997-98 was not beyond the control of the assessee. Thus, the order is a speaking order and as indicated above, we find that there is no erroneous application of law, having regard to the terms of Section 14 of the Tamil Nadu General Sales Tax Act as discussed supra.
7. In fact, the petitioner has got an efficacious statutory remedy not only against an assessment passed under Section 12(2) of the Act, but also in respect of an order passed under Section 14 of the Act before the first appellate authority, as contemplated under Section 31 of the Tamil Nadu General Sales Tax Act, 1959. In such circumstances, we find that there is no case to consider this original petition and accordingly, it is dismissed, giving liberty to the petitioner to seek alternative remedy before the first appellate authority. As the original petition itself is dismissed as above, the miscellaneous petition therein does not survive.
8. The time taken in pursuing the original petition before this Special Tribunal, shall be deducted for the purpose of calculation of period of limitation for filing statutory appeal.
9. The original papers, if any filed, shall be returned to the petitioners.
10. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned.
11. Issued under my hand and the seal of this Tribunal on the 24th day of April, 2001.