BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 01/12/2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition (MD) No.11254 of 2009 and MP(MD)No.1 of 2009 M/s.Nutan Nirman (P) Ltd., Represented by its Director, Datia S.S.Varma 4/807, TNHB Colony, Thoothukudi-2. .. Petitioner. Versus The Assistant Commissioner (CT)-I (FAC), Thoothukudi. .. Respondent. Prayer Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records on the file of the respondent in TIN No.33485822301/08-09, dated 9.10.2009, and quash the same. !For Petitioner ... Mr.S.Karunakar ^For Respondents ... Mr.Pala Ramasamy (Spl.G.P.) :ORDER
This writ petition has been filed praying for a Writ of Certiorari, to
call for the records on the file of the respondent, in TIN No.33485822301/08-09,
dated 9.10.2009 and quash the same.
2. It has been stated that the petitioner is a civil contractor and an
assessee, on the files of the respondent, with TIN No.33485822301. It has been
stated that the respondent had issued a notice, on 25.6.2009, stating that on
verification of the check post bills, received with the return and annexure-I
filed by the petitioner, it was found that the petitioner had not disclosed the
purchase of fabrication materials from M/s.Kirby Building Systems India Ltd.,
Pashamyleram, Medak District, vide invoice No.2785, dated 30.8.2008, and hence,
the respondent had proposed to determine the sale value of transfer of property
and also to levy penalty, according to the provisions of the Tamil Nadu Value
Added Tax Act, 2006. On receipt of the said notice, the petitioner, by a letter,
dated 10.7.2009, had stated that the invoice No.2785, dated 30.8.2008, relied on
by the respondent, was only an excise invoice and not a commercial invoice. It
had also been stated that the total value of the invoice was high and the
material status was huge in quantity. Hence, the petitioner had moved the goods
in a separate excise invoice on different dates and through various
transporters. On completion of the total delivery and after the receipt of the
commercial bill, the total purchases were taken into account. On receipt of the
commercial invoice during the month of March, 2009, from the supplier, the
transaction was immediately accounted for in the accounts. The petitioner had
also stated that the materials purchased were only supporting materials, used at
the time of concrete plastering for the wall, upto the roof level, during
construction and that they were not for sale. The petitioner had also requested
20 days time to submit their further explanation and the petitioner had also
prayed for a personal hearing to explain the details, in respect of the said
issue. However, the respondent had passed the impugned order, dated 9.10.2009,
without considering the explanation submitted by the petitioner.
3. Even though various grounds had been raised in support of the writ
petition, the learned counsel for the petitioner had submitted that it would
suffice if the impugned order of the respondent, dated 9.10.2009, is set aside
and if the respondent is directed to pass appropriate orders, after considering
the explanation, dated 24.9.2009, submitted by the petitioner and after giving
an opportunity of personal hearing to the petitioner.
4. The learned counsel appearing on behalf of the respondent had submitted
that even though it is stated that the explanation, dated 24.9.2009, is said to
have been submitted by the petitioner to the respondent, the respondent had not
received the explanation, as alleged by the petitioner. Further, the petitioner
has an alternative remedy by way of a revision before the Joint Commissioner,
Commercial Taxes, Tirunelveli. However, in view of the limited prayer made by
the learned counsel for the petitioner, the learned counsel appearing on behalf
of the respondent has no objection for this Court setting aside the impugned
order of the first respondent and remitting the matter back to the respondent,
who is the assessing authority, to reconsider the issue, in respect of the value
added tax and penalty to be recovered from the petitioner, in respect of the
fabrication materials, said to have been transported by the petitioner, for the
month of August, 2008, taking into account the explanation, dated 24.9.2009,
submitted by the petitioner. Further, he had also insisted that the petitioner
shall deposit a sum of Rs.5 lakhs, which is approximately 25% of the tax
component due from the petitioner.
5. In view of the averments made by the learned counsels appearing on
behalf of the petitioner, as well as the respondent, the impugned order of the
respondent, dated 9.10.2009, is set aside, on condition that the petitioner
deposits a sum of Rs.5 lakhs (five lakhs) before the respondent, within ten days
from today. On the petitioner depositing the said amount, the respondent shall
reassess the tax, as well as the penalty to be paid by the petitioner, in
respect of the fabrication materials transported in the month of August, 2008,
taking into account the explanation, dated 24.9.2009, said to have been
submitted by the petitioner and after affording an opportunity of personal
hearing to the petitioner and pass appropriate orders afresh, within a period of
four weeks, from the date of such deposit. Accordingly, the writ petition is
disposed of with the above directions. No costs. Consequently, connected M.P. is
closed.
csh
To
The Assistant Commissioner (CT)-I (FAC),
Thoothukudi.