{"id":179939,"date":"2009-08-25T00:00:00","date_gmt":"2009-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-shelters-india-vs-the-special-committee-on-25-august-2009"},"modified":"2017-10-24T22:10:48","modified_gmt":"2017-10-24T16:40:48","slug":"ms-shelters-india-vs-the-special-committee-on-25-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-shelters-india-vs-the-special-committee-on-25-august-2009","title":{"rendered":"M\/S.Shelters India vs The Special Committee on 25 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
M\/S.Shelters India vs The Special Committee on 25 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 25\/08\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM\n\nW.P.(MD).Nos.2574 to 2575 of 2009\nand\nM.P.(MD).Nos.1 & 2  of 2009\n\nM\/s.Shelters India,\nrep.by its partner A.A.Nathan,\nNo.41, Perumal Kovil Street,\nVilupuram.  \t\t\t\t\t  ... Petitioner in both W.Ps\n\nVs\n\n1.The Special Committee,\n  O\/o, Commissioner of Commercial Taxes,\n  Ezlilagam, Chepauk,\n  Chennai.\t\t\n\t\t\t\t\n\n2.The Assistant Commissioner (CT),\n  Tallakulam Circle,\n  Madurai. \t\t\t\n\t\t\t\t\t\t   ... Respondents in both W.Ps\n\nW.P(MD).Nos.2574 & 2575 of 2009\n\nPetitions filed under Article 226 of the\nConstitution of India praying for the issuance of a Writ of Certiorari to call\nfor the records in SCP.Nos.8 and 9 of 2009 (M3\/46126  & 46127 \/2008), dated\n20.02.2009 respectively, on the file of the first respondent and quash the same.\n\n!For Petitioners \t... Mr.S.Karunakar\n^For Respondents  \t... Mr.Pala.Ramasamy\n\t\t\t    Spl.Govt.Pleader\t\n\t\t\t    *****\n<\/pre>\n
:COMMON ORDER<\/p>\n
\tBy consent of both parties, both Writ Petitions are taken up
\ntogether for final disposal.\n<\/p>\n
\t\t2.\tSince the issues involved in both the Writ Petitions are
\nidentical, they are taken up together and disposed of by a common order.\n<\/p>\n
\t\t3.\tThe facts leading to the case are as follows:-\n<\/p>\n
\t3.a.\tThe prayer in both the Writ Petitions are to quash the orders passed
\nby the Special Committee constituted under the provisions of Section 16(D) of
\nthe Tamil Nadu General Sales Tax Act, 1959, dated 20.02.2009.\n<\/p>\n
   3.b.  It is seen from the affidavits that orders of assessment came to be
\npassed, on 25.06.2007, against the petitioner calculating the total tax payable
\nfor the assessment years 2000-2001 at Rs.4,05,400\/- and for the assessment year
\n2001-2002 at 1,73,770\/-.  The orders of assessment came to be passed, after the
\npetitioner submitted their objections.  However, the petitioner did not choose
\nto file an appeal against the order of assessment under the provisions of the
\nAct. The petitioner, however, filed an application under Section 16(D) of the
\nTNGST Act,  on 10.10.2008, requesting the Special Committee to set aside the
\norders of the Assessment for the afore-said two assessment years.  In the
\npetition filed before the Special Committee, the petitioner has stated due to
\nunforeseen problems, they were not able to file a reply to the notice and
\nrequested that adverse interference need not be drawn.  The petitioner placed
\nthe following facts before the Committee, which are usefully as hereunder:-
\n\t“It is submitted that the turn over has been determined based on the
\ninspection report of the Enforcement Wing Officers who inspected the place of
\nbusiness on 26.05.2004 and recovery of certain records on issue of D7.
\n\tThe residential flats named as Unicorn Monor situate at above address was
\noriginally intended for Commercial sale of profit.  The partnership firm
\nshelters India never took off.  No transaction was effected.  The business by
\nname “Shelters India” died as a concept.\n<\/p>\n
\tThe same was promoted as a family business by the family members.  But as
\nthere was no selling trend because of the location, or some reasons which is not
\nin our comprehension and all the amounts that were invested by them was arranged
\nby way of loan only.  As the interest for the loan were going on increasing,
\nthey had to surrender a portion of the property to Sri.Mohammed Ali from whom we
\nhad taken money.\n<\/p>\n
\tFor the remaining portion, in order to escape from the escalating interest
\non loan and as all over family members were having employment carrying monthly
\nsalary,  all the portions were sold to the family members by way of raising
\nhousing loan from the various banks and the funds realised by the said means was
\nutilised to settle loan.”\n<\/p>\n
\t\t4.\tOn the above factual averments, the petitioner stated that
\nthere was no commercial transaction involved in the construction of sale of
\nvarious flats and hence, there is no incidence of commercial tax.  Further, it
\nwas stated that the Assessing Authority has levied penalty under Section
\n12(3)(b) of the Act and such penalty could be levied only in the case of any
\nconcealment turnover with an intention to evade payment of tax.  Therefore, it
\nis seen that the legal issue which was raised before the Committee was as to
\nwhether there is any incidence of commercial transaction involved in the present
\ncase and whether there is intention to evade tax.\n<\/p>\n
\t\t5. Further, it is stated by the petitioner that they could not
\neffect the pre-deposit of 25% to file an appeal and therefore, they could not
\navail the remedies under the Act.  The learned counsel for the petitioner would
\nsubmit that the Committee did not take into consideration the relevant factual
\ndetails which had been raised to show that the provisions of the Act and Rules
\nare not attracted and that itself would amount to violations of principles of
\nnatural justice.\n<\/p>\n
\t\tHeard the learned counsel for the petitioner and the learned counsel
\nfor the respondents.\n<\/p>\n
\t\t6.\tThe learned counsel for the petitioner in support of his
\ncontention placed reliance upon an order passed by this Court in W.P.Nos.34709
\nto 34712 of 2007, wherein this Court disposed of the said Writ Petition and
\nremanded the matter to the respondents for fresh consideration on merits and in
\naccordance with law.\n<\/p>\n
\t\t7.\tPer contra, The learned Special Government Pleader appearing
\nfor the respondents would contend that the impugned orders do not call for
\ninterference, more particularly, considering the scope of Section 16(D) of the
\nAct.  He would submit that power under the said Section cannot be constituted to
\nsubstitute the appellate power under the statute and the circumstances
\nwarranting invoking of such power is very limited and the committee had found
\nthat there has been no violation of principles of natural justice and rightly,
\nrejected the petitioner’s case.  In such circumstances, the order cannot be
\nassailed by way of these present Writ Petitions.  Added that, he points out that
\nD-7 records have been unearthed from the assessee premises by the Enforcement
\nWing Officers.\n<\/p>\n
\t\t8. In reply, the learned counsel for the petitioner would submit
\nthat the Assessing Officer has stated that the entire D-7 records which have
\nbeen seized, have already been accounted for.\n<\/p>\n
\t\tI have carefully considered the submissions made by either parties
\nand perused the materials available on record.\n<\/p>\n
\t\t9. Before going into the factual matrix of the matter, it is
\nrelevant to extract Section 16(D)(2) of the Act for the purpose of deciding this
\ncase.\n<\/p>\n
“16.D.1…….\n<\/p>\n
 (2) Notwithstanding anything contained in this Act, the Special Committee may,
\nof its own motion or on application, call for and examine the records of the
\nassessing authority in respect of any proceeding or order under sub-section (2)
\nor (3) of Section 12 or sub-section (1) or (2) of Section 16, if such proceeding
\nor order is passed in violation of the provisions of the Act or rules made
\nthereunder or without following the principles of natural justice, set aside the
\nsaid proceeding or order and direct the assessing authority to make a fresh
\nassessment and pass fresh proceeding or order in such manner as may be directed.
\n\tProvided that such proceeding or order against which any appeal or writ is
\npending shall not be entertained under this sub-section.”\n<\/p>\n
\t\t10. In terms of the said power, the Committee may on its own motion
\nor its application examine the records of the Assessing Officer in respect of
\nany order under Section 12 (2) or (3) or Section 16(1) or (2), if such
\nproceedings or order is passed.\n<\/p>\n
(a) In violation of the provisions of the Act and the Rules made thereunder.\n<\/p>\n
(b) made without following the principles of natural justice.
\nand if it is found that on violation of the two conditions as mentioned above,
\nthe Committee has powers to direct the Assessing Authority to make fresh
\nassessment and pass fresh proceeding or order in such manner as may be directed.\n<\/p>\n
\t11.\tTherefore, the Committee while considering the petition under
\nSection 16(D) of the Act has to examine as to whether there is a violation of
\nthe provisions of the Act or Rules and that the order of the assessment
\nauthority has been passed without following the principles of natural justice.\n<\/p>\n
\t12.\tAs could be seen in the impugned orders, the Committee had rendered
\na finding, that on perusal of the files, it revealed that sufficient opportunity
\nhad been given to dealer to file objection and there is no violation of
\nprinciples of natural justice and Act and Rules.\n<\/p>\n
\t13.\tIn my opinion, such a finding without reasons itself would be in
\nviolation of the principles of natural justice. In the case of Muhurjee’s case
\nreported in S.N. Mukherjee v. Union of India,<\/a> (1990) 4 SCC 594, the Hon’ble
\nSupreme Court held in paragraph Nos:35,38 and 39, are as follows:-
\n\t“35. Reasons, when recorded by an administrative authority in an order
\npassed by it while exercising quasi-judicial functions, would no doubt
\nfacilitate the exercise of its jurisdiction by the appellate or supervisory
\nauthority. But the other considerations, referred to above, which have also
\nweighed with this Court in holding that an administrative authority must record
\nreasons for its decision, are of no less significance. These considerations show
\nthat the recording of reasons by an administrative authority serves a salutary
\npurpose, namely, it excludes chances of arbitrariness and ensures a degree of
\nfairness in the process of decision-making. The said purpose would apply equally
\nto all decisions and its application cannot be confined to decisions which are
\nsubject to appeal, revision or judicial review. In our opinion, therefore, the
\nrequirement that reasons be recorded should govern the decisions of an
\nadministrative authority exercising quasi-judicial functions irrespective of the
\nfact whether the decision is subject to appeal, revision or judicial review. It
\nmay, however, be added that it is not required that the reasons should be as
\nelaborate as in the decision of a court of law. The extent and nature of the
\nreasons would depend on particular facts and circumstances. What is necessary is
\nthat the reasons are clear and explicit so as to indicate that the authority has
\ngiven due consideration to the points in controversy. The need for recording of
\nreasons is greater in a case where the order is passed at the original stage.
\nThe appellate or revisional authority, if it affirms such an order, need not
\ngive separate reasons if the appellate or revisional authority agrees with the
\nreasons contained in the order under challenge.\n<\/p>\n
\t…..\n<\/p>\n
38. The object underlying the rules of natural justice “is to prevent
\nmiscarriage of justice” and secure “fair play in action”. As pointed out earlier
\nthe requirement about recording of reasons for its decision by an administrative
\nauthority exercising quasi-judicial functions achieves this object by excluding
\nchances of arbitrariness and ensuring a degree of fairness in the process of
\ndecision-making. Keeping in view the expanding horizon of the principles of
\nnatural justice, we are of the opinion, that the requirement to record reason
\ncan be regarded as one of the principles of natural justice which govern
\nexercise of power by administrative authorities. The rules of natural justice
\nare not embodied rules. The extent of their application depends upon the
\nparticular statutory framework whereunder jurisdiction has been conferred on the
\nadministrative authority. With regard to the exercise of a particular power by
\nan administrative authority including exercise of judicial or quasi-judicial
\nfunctions the legislature, while conferring the said power, may feel that it
\nwould not be in the larger public interest that the reasons for the order passed
\nby the administrative authority be recorded in the order and be communicated to
\nthe aggrieved party and it may dispense with such a requirement. It may do so by
\nmaking an express provision to that effect as those contained in the
\nAdministrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions
\n(Judicial Review) Act, 1977 of Australia whereby the orders passed by certain
\nspecified authorities are excluded from the ambit of the enactment. Such an
\nexclusion can also arise by necessary implication from the nature of the subject
\nmatter, the scheme and the provisions of the enactment. The public interest
\nunderlying such a provision would outweigh the salutary purpose served by the
\nrequirement to record the reasons. The said requirement cannot, therefore, be
\ninsisted upon in such a case.\n<\/p>\n
40. For the reasons aforesaid, it must be concluded that except in cases where
\nthe requirement has been dispensed with expressly or by necessary implication,
\nan administrative authority exercising judicial or quasi-judicial functions is
\nrequired to record the reasons for its decision.”\n<\/p>\n
\t14.\tTherefore, the necessity to record reasons has been well settled by
\nthe various decisions of the Hon’ble Supreme Court as well as in the decisions
\ncited above. That apart, a specific ground has been raised in the objection that
\nthere is no incidence of commercial tax and the question of levy of penalty also
\nwill not arise, as there is no intention to suppress the fact. This, in my view,
\nis a question has to be considered as to whether that there has been a violation
\nof the provisions of the Act and Rules.\n<\/p>\n
       15.\tIn that view of the matter, I deem it appropriate to set aside
\nthe impugned orders and remand the matter for fresh consideration to the first
\nrespondent, who shall take into consideration the facts and question of law
\nraised by the petitioner in the petition and  pass appropriate orders on merits
\nand in accordance with law at the earliest. It is also placed on record that the
\npetitioner has already deposited 25% of the total tax amount in respect of the
\ntwo assessment years in question.\n<\/p>\n
\tWith the above observations and directions, both Writ Petitions are
\ndisposed of.  Consequently, connected M.Ps are closed. No costs.\n<\/p>\n
ssm<\/p>\n
To<\/p>\n
1.The Special Committee,
\n  O\/o, Commissioner of Commercial Taxes,
\n  Ezlilagam, Chepauk,
\n  Chennai.\n<\/p>\n
2.The Assistant Commissioner (CT),
\n  Tallakulam Circle,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M\/S.Shelters India vs The Special Committee on 25 August, 2009 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25\/08\/2009 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.(MD).Nos.2574 to 2575 of 2009 and M.P.(MD).Nos.1 & 2 of 2009 M\/s.Shelters India, rep.by its partner A.A.Nathan, No.41, Perumal Kovil Street, Vilupuram. … Petitioner in both […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-179939","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM\/S.Shelters India vs The Special Committee on 25 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-shelters-india-vs-the-special-committee-on-25-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S.Shelters India vs The Special Committee on 25 August, 2009 - 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