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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SUNDAR, J.
Tvl. Jai Renga Mills Ltd., Rep. by its Managing Director, K.R. Geetha - Petitioner
Versus
State of Tamil Nadu, Rep. by its Secretary to Government, Chennai & Another - Respondents
W.P.(MD) No. 393 of 2022 & W.M.P.(MD) No. 306 of 2022
Decided On : 01-02-2022
Tamil Nadu Additional Sales Tax Rule, 1970 - Rule 9 - Additional Sales Tax Act – Sections 2 , 4(1) , - TN GST Act - Sections 36, 27 , 23 , 22, sub-sections (2) , 4-A, sub-section (3) of 10, 12, 12-A, 14, 15, sub-sections (1) and (2) of 16, 18 and 38 - Limitation Act - Section 14 - Tamil Nadu Act 14 of 1970 - Section 2 - Tamil Nadu Additional Sales Tax Act, 1970 - Section 2 - SARFAESI Act - Sections 13(4) and 17 - Taxation - Order of assessment - Savings - Appeal to the Appellate Tribunal - Appeal to the Appellate Assistant Commissioner - Writ petitioner through various tiers and it culminated in an order on file of erstwhile Tamil Nadu Taxation Special Tribunal order of erstwhile Tribunal was assailed by writ petitioner in and by a writ petition - Remanded matter back to AO (Assessing Officer) with directives to decide weeks after affording an opportunity of personal hearing to writ petitioner and by applying decisions referred pursuant to such order of Hon'ble Division Bench impugned order came to be made by second respondent – Held, none of above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on person in charge of conveyance - As a matter of fact, High Court has while doing this exercise proceeded on basis of surmises. However, since we are inclined to relegate respondent to pursuit of alternate statutory remedy under Section 107, this Court makes no observation on merits of case of the respondent - It is a clear case where writ petitioner may have to avail alternate remedy if writ petitioner is aggrieved that manner in which Siemen's ratio has been applied qua proportionate reduction is incorrect. In other words, it cannot be said that Siemen's ratio has not been applied. It can at best be said that Siemen's ratio has been incorrectly applied. This becomes a ground for appeal ie., statutory appeals and revision in a multitier mechanism under TNGST Act which has been made applicable to Additional Sales Tax Act vide Rule 9 of Additional Sales Tax Rules as already alluded to supra - If writ petitioner approaches appellate authority, matter shall be dealt with by appellate authority on its own merits in accordance with law subject to limitation and conditions of pre-deposit if any. With regard to limitation if any plea predicated and posited on Section 14 of Limitation Act is made, the same shall also be dealt with by the appellate authority on its own merits and in accordance with law - Writ petition dismissed.
JUDGMENT :
(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records relating to the Assessment order passed by the second respondent in his proceeding TNGST No.6040444/1996-97 dated 20.09.2021 quash the same and to direct the respondent to pass fresh order of assessment considering the total turnover for the entire financial year which is below rupees one hundred crores after affording the opportunity of being heard for the assessment year 1996-1997.)
1. In the captioned main writ petition an order dated 20.09.2021 bearing reference TNGST No.6040444/1996-97 made by the second respondent has been assailed [hereinafter 'impugned order' for the sake of brevity, convenience and clarity].
2. In the main writ petition Mr. A.S. Mujibur Rahman, learned Counsel on record for writ petitioner and Mr. M. Lingadurai learned Special Government Pleader who has accepted notice on behalf of both the respondents are before this Court, with the consent of learned Counsel on both sides main writ petition was taken up and heard out owing to the short point on which the entire matter turns.
3. Short facts shorn of elaboration or in other words facts that are imperative for appreciating this order are that the writ petitioner is a registered dealer on the file of second respondent under the provisions of 'the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959)' [hereinafter 'TNGST Act' for the sake of convenience and clarity]; that the second respondent Assessing Officer [hereinafter 'AO' for the sake of brevity] vide order dated 10.04.1998 had levied and collected additional sales tax from writ petitioner; that such levy is under 'the Tamil Nadu Additional Sales Tax Act, 1970 (Act No.XIV of 1970)' [hereinafter 'Additional Sales Tax Act' for the sake of convenience and clarity]; that such levy was assailed by the writ petitioner through various tiers and it culminated in an order dated 12.06.2002 made in O.P.No.559 of 2002 on the file of erstwhile Tamil Nadu Taxation Special Tribunal, Chennai; that this 12.06.2002 order of the erstwhile Tribunal was assailed by writ petitioner in and by a writ petition being W.P.No.32570 of 2002 and the same came to be disposed of by a Hon'ble Division Bench in and by order dated 22.01.2021; that by this order Hon'ble Division Bench set aside the 12.06.2002 order of the erstwhile Tribunal, remanded the matter back to AO (Assessing Officer) with directives to decide the matter within eight [8] weeks after affording an opportunity of personal hearing to writ petitioner and by applying the decisions referred to in the order; that pursuant to such order of Hon'ble Division Bench the impugned order came to be made by the second respondent (AO); that assailing the impugned order captioned main writ petition has been filed.
4. Notwithstanding very many averments in the writ affidavit and notwithstanding several grounds raised in the writ affidavit, learned Counsel for writ petitioner made three pointed submissions and they are as follows:
(b) The issue ie., circumstances under which levy of additional sales tax would arise owing to a mid financial year amendment to the statute is settled;
(c) Personal hearing has not been granted.
5. In response to the aforementioned submissions of learned Counsel for writ petitioner, learned State Counsel drew the attention of this Court to the order of Hon'ble Division Bench and more particularly paragraph No.8 thereat where the National Time Co., case [State of Tamil Nadu Vs. National Time Co., reported in (2011) 39 VST 247 (Mad)] has been extracted and reproduced. To be noted in National Time Co., case Siemens Ltd., case law being Siemens Ltd. Vs. State of Tamil Nadu reported in 110 STC 313 has been followed. Learned State Counsel drew the attention of this Court to paragraphs 15 and 19 which read as
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