2022 (3) TMI 499 - HC - VAT and Sales Tax

Reopening of original assessment - addition of 15% of the book turnover and propose to assess the turnover on the ground that after adding 15% of the addition to the book turnover, it exceeds ₹ 5 crores - opportunity of personal hearing not provided - penalty under Section 27 (3) of the TNVAT Act - principles of natural justice - HELD THAT - It is a fact that on 13.08.2021, personal hearing was given not only to the petitioner, but also to the two other cases in respect of the sister concern of the petitioners' - it can be safely concluded that on 13.08.2021, definitely the petitioner's representative did appear before the respondent. Whether the very same representative made any request to the same officer to defer the date of personal hearing in respect of the petitioner's case? - HELD THAT - It is not the definite case of the officer concerned that on the date i.e., on 13.08.2021, the petitioner's representative did not appear or it is also not the case of the said officer that the petitioner's representative did not make any such request as claimed now by the petitioner. This Court is of the view that the said plea raised by the petitioner that on 13.08.2021 when request was made, of course orally, by the representative of the petitioner to give a deferred date, the said plea having been accepted, was not executed by the respondent by giving any further date for personal hearing, has got some substance. Therefore, without giving any such personal hearing in the deferred date as claimed by the petitioner's representative on 13.08.2021 since the impugned order has been passed, on that ground, this Court feel that, the said impugned order can be interfered with and accordingly, the matter can be remitted back to the respondent for reconsideration. Petition allowed by way of remand.

Summary

Issues:
1. Challenge to the assessment order based on principles of natural justice and jurisdiction.

Analysis:
The petitioner, a registered dealer in vegetable oil, challenged an assessment order issued by the respondent proposing to reopen the original assessment. The petitioner claimed exemption based on turnover below the taxable limit and completion of deemed assessment. The respondent's notice for revision added 15% to the turnover, exceeding the limit, and proposed penalty under the TNVAT Act. The petitioner's representative appeared for a personal hearing but requested a deferred date due to time constraints. Despite the oral acceptance of the request, the respondent proceeded to pass the order without granting the adjourned date, leading to the challenge on grounds of violating natural justice principles.

The respondent, represented by the Government Advocate, argued that there was no written request for deferring the hearing date. The officer in charge at the time could not recall if such a request was made. The Government Advocate contended that since the petitioner's representative did not utilize the personal hearing chance on the given date, the assessment was concluded based on available records, warranting no interference.

The court considered both parties' submissions and examined the events of the personal hearing date. While the petitioner's representative did appear before the respondent, the crucial question was whether a request for a deferred date was made. The petitioner claimed that the representative, after handling the sister concern cases, orally requested an adjournment, which was allegedly accepted. The court found merit in the petitioner's claim, especially considering the officer's inability to recollect the events of that day. Therefore, the court concluded that the impugned order could be interfered with and remitted the matter back to the respondent for reconsideration.

In the final order, the court set aside the impugned order and directed the respondent to provide a final opportunity for a personal hearing within two weeks. The petitioner was instructed to cooperate and appear on the specified date, with a warning that non-appearance would allow the respondent to proceed based on available records. The court disposed of the writ petition without costs, emphasizing the importance of adhering to principles of natural justice in administrative proceedings.