ORDER

The petitioner has challenged the impugned assessment order dated

30.11.2018, whereby the respondent has come to the conclusion that there was

https://www.mhc.tna.g osvu.inp/jupdrisession of sales turn over by the petitioner and therefore, the petitioner

was liable to pay tax of Rs.2,77,450/-; surcharge of Rs.13,872/-; and penalty of Rs.2,18,491/-.

2.The impugned order dated 30.11.2018 for the assessment year

2005-2006 is challenged primarily on the ground that pre-assessment notice dated 28.04.2017 issued to the petitioner for the assessment year 2005-2006, was based on an inspection conducted at the petitioner's premises on 18.10.2016 and based on an internal communication between the respondent and the Enforcement Wing from the Office of the Tamil Nadu Minerals Limited [hereinafter referred to as ''TAMIN''].

3.It is the submission of the petitioner that he had just started excavating the land for granite during 2005-2006 and had paid seigniorage fee for 48.39 Cubic Metres. It is submitted that the petitioner was unable to sell the product in the open market and hence, he attempted to sell the same through middlemen. Since the turn over was below 10 lakhs, the petitioner did not obtain VAT registration immediately.

4.It is submitted that the respondent has relied upon the letter dated

17.12.2016 of the TAMIN to conclude that the price per cubic feet was Rs.20,774/- and therefore, the value of granite blocks excavated by the petitioner was Rs.10,05,254/- to which 15% was added towards conversion and freight and accordingly, the actual suppress turn over has been arrived at Rs.11,56,042/-.

5.The learned counsel for the petitioner submits that despite the fact that the petitioner asked for these details and requested the respondent to cross- examine the Officer of the TAMIN, who gave the letter to the respondent, the respondent has proceeded to pass the impugned order.

6.Opposing the prayer, the learned Government Advocate for the respondent submits that the petitioner has indulged in large scale evasion of tax inasmuch as even for the period when the petitioner was not having registration, he has generated invoice with the TIN Number though he obtained registration only after 11.07.2007. It is therefore submitted that the petitioner has not maintained proper accounts and therefore, as such, the impugned order is sustainable. It is further submitted that the petitioner has an alternate remedy before the Appellate Deputy Commissioner (ST) (North), Madurai, and therefore, the Writ Petition is liable to be dismissed.

7.It is further submitted that the impugned order is dated 30.11.2018, whereas, the Writ Petition has been filed by the petitioner only on 28.02.2019.

It is therefore submitted that the Writ Petition may be dismissed on latches and the petitioner may be relegated to work out the remedy before the Deputy Appellate Commissioner.

8.I have considered the arguments advanced by the learned counsel for the petitioner and the learned Government Advocate for the respondent and perused the impugned order, notices preceding the impugned order and the counter affidavit filed by the respondent.

9.There is no dispute that the petitioner has excavated 48.39 cubic meters of granite during the period in dispute. During the assessment year 2005-2006, the respondent has arrived at the value of excavated granite at Rs. 20,774/- per cubic feet, based on a letter of the Divisional Manager of TAMIN dated 17.12.2016. The petitioner is entitled to have a copy of the aforesaid letter before the taxable value was determined by the respondent. It is open for the petitioner to get a suitable certificate from a Geologist regarding the value of the granite sold by the petitioner during the above said period. Neither the respondent has furnished the copy of the letter dated 17.12.2016 to the petitioner, nor the petitioner has made an attempt to bring any evidence to dislodge the presumption in the notice and to disprove the claim of the respondent. The tru