SUBODH ENTERPRISES Vs. DEPUTY COMMERCIAL TAX OFFICER KANCHEEPURAM

JUDGEMENT

(1.) THIS petition is filed to call for the records from the file of the respondent in CST No.723635/2001-02 dated 26.03.2008, quash the same, direct the respondent to grant a copy of the Enforcement Wing Report relied on by the respondent in the pre-revision notice dated 10.11.2006 in CST.No.723635/2001-02, consider the objections filed by the petitioner, grant personal hearing to the petitioner and petitioner's Advocate.

(2.) THE case of the petitioner as per the affidavit is as under: THE petitioner is a registered dealer under the provisions of the Tamil Nadu General Sales Tax Act, 1959, and they are dealing in casuarina billets and eucalyptus billets. THE respondent passed final orders of assessment under the Central Act, by order in CST.No.723635/2001-02 and CST.No.723635/2002-03 on 25.04.2003 and 24.08.2004 respectively in which after scrutinising the entire document, it was declared by the respondent that the petitioner is not liable to pay any tax other than the tax paid and assessed by the final orders of assessment. However, all of a sudden pre revision notices dated 10.11.2006, for both the above said assessment years were issued by the respondent, wherein the respondent proposed to assess the alleged escaped turnover of sales made to J.K.Paper Mills Ltd., warranting assessment at the relevant rate for Rs.10,34,74,299/- for the assessment year 2001-02 and Rs.5,68,26,030 for the assessment year 2002-03 together with penalties under Section 16(2)of the Act read with Section 9(2) of the Central Act. THE petitioner was directed to file objections within 15 days, on receipt of said notices. It is stated in the notice that the basis for the notice was the report of the Enforcement Wing Officials. However, no such report of the enforcement wing was enclosed. According to the petitioner, the goods were supplied to the purchaser at Orissa, namely J.K.Paper Mills Limited and the transport was arranged by the buyers through a separate agency and the transport charges, freight charges and handling expenses were not at all included in the sale price paid to the petitioner but were specifically paid by the outside State buyer, i.e., J.K.Paper Mills Limited, Orissa to the transporter Balaji Traders after sales were completed. THE sale price exclusively charged and agreed to between the petitioner and buyer was charged as shown in the sale bills and subjected to tax properly in accordance with law in the final assessment orders passed by the respondent on 25.04.2003 and 24.08.2004 as referred to above. All the documents pertaining to the transaction taken place between the petitioner and the Orissa State buyer were submitted before the authorities. THE petitioner sent letters on 20.11.2006 and 05.12.2006 to the respondent explaining the position. THE stand of the petitioner was also confirmed by the Orissa State buyer dated 02.12.2006 and 06.12.2006. THE respondent by a common notice dated 22.03.2007 required the petitioner to file the copies of the agreement with J.K.Paper Mills Limited, details regarding rate per metric tonne, copy of the sale invoices, within 15 days from the date of receipt of a copy of the said notice to the petitioner. THE same was furnished to the respondent during the First week of April 2007 by the petitioner. THE petitioner also submitted to the assessing officer/ the respondent herein all the material receipt advices for delivering the material to M/s. Balaji Traders at Tamil Nadu as per the advice of J.K.Paper Mills Limited for onward movement to their mills at Orissa. Again, by a letter dated 20.03.2008, the petitioner had reiterated the entire details to the respondent. THE Orissa State buyer also had furnished all the documents in respect of the Transport made between the petitioner and the State buyer and the receipts paid by them separately to the effect. Unfortunately, the respondent without considering the objections made by the petitioner and the documents furnished by them and also the representation made by the Orissa State buyer and the request made by the petitioner for personal hearing, passed the impugned order on 26.03.2008 confirming the proposal already made on 10.11.2006 and demanded the payment of sales tax with penalty within a specified time. Since those orders passed are ex-facie illegal and not in consonance with the provisions of the Act, they have challenged the same in the writ petition.

(3.) PER contra, learned Government Advocate appearing for the tax department submits that the order passed by the department is valid as sufficient opportunity was given to the petitioner to produce all the documents and only on that basis the orders have been passed.