TVL. VIVEK LIMITED Vs. THE ASSISTANT COMMISSIONER

JUDGEMENT

(1.) THESE writ petitions have been filed, praying for the issuance of the writ of certiorari, to call for the records in respect of the revised assessment order TIN 33530801214/ 2009 -10 dated 30.09.2014 passed by the Respondent in respect of the assessment years 2009 -10 and 2010 -11 under the Tamil Nadu Value Added Tax Act 2006 and the consequent demand notice dated 30.09.2014 as well as the consequent notice of attachment dated 14.11.2014 both issued by the Respondent and quash the same.

(2.) ACCORDING to the petitioner, final assessment orders dated 30.03.2012 were passed by the respondent for the years 2009 -10 and 2010 -11 on total taxable turnovers of Rs. 292,79,98,292/ - and Rs. 278,79,12,538 and Rs. 311,54,80,356/ - and Rs. 300,13,54,408/ - respectively under the Tamil Nadu Value Added Tax Act, 2006 (in short the Act). Subsequently, the respondent issued notices dated 23.07.2012 and 20.09.2012, proposing to revise the above said assessments by disallowing the exemption and called for objections from the petitioner. Pursuant to the said notices, the petitioner submitted the details vide letter dated 20.08.2012, 10.10.2012 and 13.3.2013 regarding the sales return unfructified sales for the year 2009 -10 and 2010 -11, specifically mentioning that the petitioner could furnish further documentary proof and details if the explanation is found unsatisfactory. After receipt of the explanation, the respondent passed the impugned order stating that the details furnished by the petitioner were not acceptable and confirmed the proposal made in the notices dated 23.07.2002 and 20.09.2012 to disallow the claim of exemption of Rs. 13,66,70,858/ - and 11,41,948/ - respectively. The grievance of the petitioner is that before passing the impugned orders, the respondent has not provided any opportunity to the petitioner, calling for their explanation as to his unilateral conclusion that the details of sales returns and unfructified sales furnished by them were not acceptable to him. According to the petitioner, the respondent has completely ignored the undertaking given by the petitioner to produce necessary material and documentary evidence if explanation is found unsatisfactory and thereby denied the petitioner an opportunity to show cause. Thereafter, the petitioner filed Revision Petitions dated 10.11.2014 before the respondent. According to the petitioner while pending the revision, the respondent proceeded to initiate coercive action against the petitioner by issuing notices dated 14.11.2014 which were served on the petitioner on 17.11.2014, for attachment of the bank account of the petitioner. Hence the Writ Petition.

(3.) MR . Satish Parasaran, learned counsel appearing for the petitioner would mainly contend that before passing the impugned orders, the respondent did not provide any opportunity to the petitioner to furnish documents or seek additional information despite the specific request made by the petitioner and thereby, violated the principles of natural justice. He would further contend that neither show cause notices nor the impugned order provide the details of income that had escaped assessment and the re -assessment is merely a re -consideration of material that has already been furnished and explained and hence, it is nothing but a change of opinion. He pointed out that an unfructified sale is not at all a sale as defined in the Act since there was no actual transfer of property in goods when the sale remains unfructified and it does not form part of the turnover of the dealer, however, erroneously the respondent has adopted the criteria for sales return as concluded sales, return of goods sold, etc., to decide the admissibility of the claim of unfructified sales. He pointed out that in respect of the amount of Rs. 8,39,10,338/ - representing unfructified sales, the petitioner furnished relevant details along with their letter dated 29.8.2012 and thereby complied with the requirements of Rule 10(6)(b)(ii) in respect of unfructified sales. Therefore, the learned counsel sought for setting aside the impugned orders.