2020 (3) TMI 1090 - HC - VAT and Sales Tax

Audit of the business operations of the petitioner - Section 64 (4) of the TNVAT Act - Whether the inspection done by the second respondent, who is below the rank of Commissioner is against the provisions of law? - HELD THAT - Section 64 (4) of the Act empowers the Commissioner to order for audit of any registered dealers and such audit is required to be done by an Officer not below the rank of Deputy Commercial Tax Officer and such responsibility cannot be delegated to others or usurped by others - In the case on hand, the Joint Commissioner (CT) Enforcement I, who is subordinate to the Commissioner, has ordered for audit, which is against the provisions of the Act. Based on the same, the first respondent has passed the impugned assessment orders, which are as rightly contended by the learned counsel for the petitioner, liable to be set-aside. This Court is inclined to set-aside the impugned assessment orders and remit the matters back to the authority, for passing orders afresh, after providing due opportunity to the petitioner, for production of necessary accounts as well as filing proper objections - Petition allowed by way of remand.

Summary

Issues involved:
1. Jurisdiction of the second respondent to conduct audit.
2. Validity of assessment orders passed by the first respondent.
3. Compliance with due procedures and provisions of law in passing the impugned orders.

Analysis:
1. The petitioner challenged the orders passed by the first respondent for the assessment years 2007-08 to 2013-14, based on an inspection conducted by the second respondent. The petitioner contended that the audit conducted by the second respondent, who is below the rank of Commissioner, was against the provisions of law. The Court noted that Section 64 (4) of the Act empowers the Commissioner to order an audit of registered dealers, to be conducted by an officer not below the rank of Deputy Commercial Tax Officer. In this case, the audit was ordered by a Joint Commissioner (CT) Enforcement I, who is subordinate to the Commissioner, thereby violating the Act. Consequently, the impugned assessment orders were set aside, and the matters were remitted back to the authority for fresh orders, with due opportunity for the petitioner to present necessary accounts and objections.

2. The Assessing Authority had issued assessment orders without considering the petitioner's replies and without providing an opportunity for a hearing. The petitioner argued that the tabular column in the assessment orders, detailing turnover sales tax and interest payable, was not mentioned in the pre-assessment notices, rendering the assessment proceedings flawed. The Court found merit in this argument and concluded that the impugned assessment orders were liable to be set aside. The Court directed the Assessing Authority to issue a fresh notice within two weeks or accept the impugned orders as notices, allowing the petitioner to file objections and documents within three weeks. Subsequently, the Assessing Authority was directed to pass appropriate orders within six weeks, after providing a personal hearing to the petitioner.

3. The learned Government Advocate (Taxes) contended that the impugned orders were passed following due procedures and in accordance with the law. However, upon considering the submissions from both parties and examining the record, the Court found that the audit conducted by an unauthorized officer and the procedural lapses in issuing assessment orders warranted setting aside the impugned orders. The Court's decision to remit the matters back to the authority for fresh orders with proper opportunity for the petitioner demonstrates the importance of adherence to legal provisions and due process in tax assessments.

Overall, the judgment highlights the significance of jurisdictional authority in conducting audits, the necessity for procedural compliance in assessment proceedings, and the court's role in ensuring fair treatment and adherence to the law in tax matters.