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2019 (7) TMI 892 - HC - VAT and Sales TaxBest Judgement assessment - Form 'WW' - the writ petitioner did not file report from the Auditor being Auditor's statement in the prescribed form - Section 63A of TNVAT Act and Rule 16 of TNVAT Rules - HELD THAT - In the instant case, unlike TVL. NITHRA FURNITURE P. LTD., VERSUS THE ASSISTANT COMMISSIONER (CT) , CHENNAI. 2015 (8) TMI 1467 - MADRAS HIGH COURT best judgment assessment was not revisited solely because of Form 'WW' issue. This becomes clear from the personal hearing notice issued by the respondent dated 12.03.2018 captioned 'PERSONAL HEARING NOTICE'. A perusal of this notice reveals that the respondent has asked for atleast three documents with clarity and specificity. Therefore, in the instant case, the respondent has asked for at least three distinct / specific documents and the same has not been furnished by the writ petitioner dealer. It is not a case of mere non submission of Form 'WW'. Therefore, it comes out clearly that even while making the proposal, vide notice dated 01.02.2018, the respondent has made some approximation and has taken into account whatever material was available before him. Writ petitioner has not produced any contra material thereafter though the respondent had specifically asked for three different sets of documents, which were not produced - this Court is inclined to accept the submission that the instant case is distinguishable on facts from 'Tvl.Nithra Furniture case'. In the instant case, it is nobody's case that while making best judgment assessment, it has been made arbitrarily. Respondent had added 50% of the returns taken out from the web report, but that is based on absence of documents, which were sought for under 12.03.2018 notice. In the absence of documents, the respondent has no option other than making approximation. Petition dismissed.
Issues Involved:
1. Non-filing of Auditor's report in Form 'WW' by the petitioner. 2. Issuance of notices by the respondent and the petitioner's non-response. 3. Best judgment assessment under Section 22(4) of the TNVAT Act. 4. Adequacy of opportunities provided to the petitioner. 5. Applicability of precedents and principles from previous judgments. 6. Availability and appropriateness of alternate statutory remedies. Issue-wise Detailed Analysis: 1. Non-filing of Auditor's report in Form 'WW' by the petitioner: The petitioner, a dealer under the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act), with a turnover exceeding one crore rupees for the assessment year 2016-2017, failed to submit the Auditor's report in Form 'WW' as mandated by Section 63A of the TNVAT Act and Rule 16A of the TNVAT Rules. This report was due by 31.12.2017, but the petitioner did not comply. 2. Issuance of notices by the respondent and the petitioner's non-response: The respondent issued a notice on 01.02.2018, calling for objections and the submission of Form 'WW'. The notice indicated an addition of 50% to the turnover for non-submission of the form. Despite this, the petitioner did not respond. A subsequent notice dated 12.03.2018 reiterated the request and mentioned the intention to adopt best judgment assessment. The petitioner again failed to respond or participate in the personal hearing. 3. Best judgment assessment under Section 22(4) of the TNVAT Act: The respondent proceeded with a best judgment assessment due to the petitioner's non-compliance and non-response. The assessment added 50% to the turnover based on the available web report, which was justified by the absence of required documents. 4. Adequacy of opportunities provided to the petitioner: The court found that adequate opportunities were provided to the petitioner through the notices dated 01.02.2018 and 12.03.2018. The petitioner was asked to submit specific documents, including the ITC Adjustment Register, Stock Register, and Transport documents, but failed to do so. 5. Applicability of precedents and principles from previous judgments: The petitioner cited the Tvl.Nithra Furniture case, arguing that non-furnishing of Form 'WW' alone should not lead to an addition of 50% under best judgment assessment. However, the court distinguished this case on facts, noting that the petitioner also failed to submit other specific documents. The court also referenced the H.M.Esufali principle, which allows for some approximation in best judgment assessments as long as they are not arbitrary and have a reasonable nexus to the available material. 6. Availability and appropriateness of alternate statutory remedies: The court highlighted that a statutory appeal under Section 51 of the TNVAT Act was available to the petitioner. The rule of alternate remedy, particularly in fiscal statutes, was emphasized, following the principles laid down in Satyawati Tondon and K.C.Mathew cases. The court suggested that the petitioner could seek condonation of delay and exclusion of time spent in the writ petition under Section 14 of the Limitation Act if they chose to file an appeal. Conclusion: The writ petition was dismissed, with the court preserving the petitioner's right to avail the alternate remedy of a statutory appeal. The court directed the return of the original impugned order to the petitioner for this purpose and emphasized that the appellate authority could consider the Form 'WW' and other documents afresh. No costs were imposed, and the connected miscellaneous petition was closed.
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