Not giving opportunity of cross-examination is violative of principles of natural justice.

(Prayer : Petition filed under Article 226 of the Constitution of India Praying for the issuance of a Writ of Certiorari by calling for the records of the respondent in his proceedings in TNGST No.2620565/03-04 dated 23.11.2005 and quash the same as illegal.)

Mr. Manohar Sundaram, learned Government Advocate for Taxes takes notice for the respondent. By consent of both parties, the writ petition itself is taken up for final disposal.

2. The short facts of the case as culled out from the affidavit filed in support of the above writ petition are as follows:

The petitioners are manufacturers and dealers of Cotton Yarn. The petitioners are registered dealers under the TNGST Act and are assessees on the file of the respondent herein. The petitioners were finally assessed to tax on a total and taxable turnover of Rs.2,99,54,024/- and Rs.98,89,036/- respectively for the assessment year 2003-04 under TNGST Act.

3. The respondent has issued a notice in TNGST 2620585/03-04 dated 25.08.2005 stating that on further verification of account it was noticed that the petitioners has purchased Sko from M/s. S.G.R. Petro Organic Limited Cochin to the tune of Rs.1,57,800/- and the same has not been accounted by the petitioners. The respondent has proposed to estimate the sale value by adding CST at 4% and Lorry Freight and G.P. at 10% and has arrived at the sales turnover at Rs.1,88,223/-. The respondent has proposed to add equal time for probable omission and also proposed to levy penalty under Section 12(3) of the TNGST Act.

4. The petitioners submitted a reply setting out all the details. In the said reply, the petitioners have made the following requests:

1) Copy of orders, if any, placed by us for the supply of SKO to Tv. SGS Petrol Organics Limited, Cochin.

2) Sale invoices in which the consignments were sold (in original) for our perusal with permission to take copies of those invoices.

3) Mode of payment of the value of the goods.

4) C Form No. if any issued to the above purchase.

5) The names and address of the drivers of those goods vehicles may be made available for my cross examination as they are the first persons who would be able to give the primary evidence for the delivery of the consignments.

6) Such other documents that may arise after perusal of the above records.

But, according to the petitioners, the request of the petitioners, as extracted above, was not complied with. But straightaway, the impugned proceedings have been passed by the respondent on 23.11.2005. The main grievance of the petitioners is that though the respondent in his impugned order has stated that the reply sent by the petitioner was received on 22.11.2005, he has not considered the same and neither furnished the documents sought for by the petitioners nor provided any opportunity to cross examine the driver of the lorry.

5. According to the learned counsel for the petitioners, the respondent has passed the order under challenge without giving proper opportunity to the petitioner and the order is against the provisions of the TNGST Act and further he contends that the principles of natural justice has been violated and in number of cases, this Court has set-aside similar orders and the Assessing Officers have been directed to furnish the documents sought for by the assesees and afford opportunity of cross examining the persons from whom statements have been recorded or documents have been recovered.

6. Mr. Manohar Sundaram, learned Government Advocate for Taxes fairly submitted that the respondent has not complied with the request of the petitioner. But, he submitted that it may not be possible for the Department to secure the persons like driver of the vehicle to provide the opportunity of cross examination to the petitioners. The said submission of learned Government Advocate is countered by the learned counsel for the petitioner by submitting that the document that is relied upon by the respondent is only a delivery note and hence the driver of the vehicl