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M/s. Shiva Shree Builders, Rep. by its Authorized Signatory v/s The Commercial Tax Officer, Coimbatore

    Writ Appeal Nos. 46 & 47 of 2021 & CMP. Nos. 500, 505 and 506 of 2021

    Decided On, 27 January 2021

    At, High Court of Judicature at Madras


    For the Appellant: C. Baktha Siromani, Advocate. For the Respondent: Mohammed Shaffiq, SGP.

Judgment Text

(Prayer: Appeals under Clause 15 of the Letters Patent against the common order dated 19.6.2017 in W.P.Nos.5170 and 5171 of 2017)

Common Judgment

T.S. Sivagnanam, J

1. We have heard Mr.C.Baktha Siromani, learned counsel for the appellant and Mr.Mohammed Shaffiq, learned Special Government Pleader accepting notice for the respondent.

2. These appeals, filed by the writ petitioner/registered dealer under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (for brevity, the Act) on the file of the respondent, are directed against the common order dated 19.6.2017 in W.P.Nos.5170 and 5171 of 2017 respectively.

3. The said writ petitions were filed challenging the assessment orders dated 23.1.2017 respectively for the years 2012-13 and 2013- 14. The learned Single Judge dismissed the said writ petitions on the ground of availability of alternate remedy.

4. Mainly, two issues were canvassed by the appellant/writ petitioner before the Writ Court namely that (i) they filed option letters for both the assessment years respectively on 15.4.2012 and 12.4.2013 exercising option to be assessed in terms of Section 6 of the Act, which provides for payment of tax at compounded rates by works contractor and (ii) ignoring the option letters, the assessments have been completed under Section 5 of the Act, which is not sustainable. In order to sustain their claim that they filed option letters respectively dated 15.4.2012 and 12.4.2013 for the relevant assessment years, the appellant produced acknowledgments stated to have been given by the Department in the letter delivery books.

5. The Department resisted the prayer sought for in the said writ petitions by filing counter wherein they stated that the acknowledgments, which were being relied upon by the appellant, were fabricated records, that the appellant did not come forward to produce the original records before the Assessing Officer, that they did not file any proof in support of filing the returns manually within time and that they did not pay tax regularly.

6. The appellant's argument was that they are civil contractors and in terms of Section 6(4) of the Act, payment of tax for the works contract done is based on the receipts for the relevant assessment year and taxes are to be paid by the appellant when the appellant receives payment or receivable from the person, for whom the works contract was undertaken by the appellant. It was the further case of the appellant that for the work done for the assessment year 2012-13, payment was received even in 2014-15 and hence, they filed returns and paid taxes belatedly. It was also the case of the appellant that if there had been belated payment of tax, it would always be open to the Assessing Authority to levy compounding fee or penal interest and that the returns filed by them and the taxes paid could not be revoked or canceled.

7. In spite of several orders and judgments of this Court directing the Department to change the procedure, all those orders are fallen to the deaf ears of the Department. In any event, the Assessing Officer filed a counter in the said writ petitions stating that the original records were not produced, which the appellant/writ petitioner was duty bound to produce before the Assessing Officer. As noticed above, the learned Single Judge did not go into the merits of the matter, but opined that when the appellant did not produce any proof of having exercised the option to pay tax under Section 6 of the Act and after having noted that the Department had taken a stand that the option letters were fabricated records, the learned Single Judge declined to entertain the writ petitions and left it open to the appellant to file appeals before the Appellate Authority. No doubt, it is the duty of the appellant/dealer to establish before the Assessing Authority that they filed option letters.

8. The learned counsel for the appellant/writ petition submits that an opportunity may be given to the appellant to go before the Assessing Officer and establish their stand and that the appellant may be put on terms.

9. Considering the fact that the assessments are of the years 2012-13 and 2013-14, that the matters are dragged on till now, that apart from the taxes, which were remitted by the dealer in the year 2015, the Department has not been able to recover tax nor the penalty, which has been quantified in the impugned assessment orders passed in the year 2017 and that the assessment orders remain as paper orders, this Court is of the view that one more opportunity can be granted to the appellant to go before the Assessing Officer by producing the original records to substantiate their claim. However, such an option shall be given subject to a stringent condition.

10. In the light of the above, we are inclined to grant one more opportunity to the appellant, however, subject to a condition.

11. Accordingly, the writ appeals are allowed and the common impugned order passed by the learned Single Judge is set aside. The appellant shall pay 50% of the disputed tax for each of the assessment years within a period of 60 days from the date of receipt of a copy of this common judgment and if the payment is made for both the assessment years within the time stipulated, the appellant will be entitled to treat the assessment orders dated 23.1.2017 for the years 2012-13 and 2013-14 as show causes notices, give their explanation, appear before the Assessing Officer on the date to be fixed by him and produce original records to

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justify their stand. Thereafter, the Assessing Officer shall peruse the original records and take a fresh decision on merits and in accordance with law. The matters are remanded to the Assessing Officer subject to compliance of the above condition within the time prescribed by this Court in this common judgment. In the event the appellant fails to comply with the above condition within the stipulated time, the benefit of this judgment will not enure in favour of the appellant and the appeals will be dismissed automatically without any further reference to this Court. No costs. Consequently, the connected CMPs are closed.