9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (5) TMI 402 - HC - GSTChallenge to summary order passed against the petitioner under Section 74 of the Tamil Nadu Value Added Tax Act, 2017 - petitioner has not enclosed the copy of the detailed order passed against the petitioner on the same day - opportunity of personal hearing not provided - violation of principles of natural justice - HELD THAT - As per the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinadu and others Vs. Glaxo Smith Kline Consumer Health Care Limited 2020 (5) TMI 149 - SUPREME COURT , this Writ Petition, at this distant point of time, is not maintainable. In any event, the fact remains that the petitioner has initiated proceedings for rectifying the returns filed under Section 139 of the Income Tax Act, 1961. However, the petitioner has not secured any order from the Assessing Officer to rectify the return filed by him for the relevant Assessment Year, based on which, the impugned assessment order has been passed under the provisions of the TNGST Act, 2017. The case of the petitioner that no personal hearing was given to the petitioner also cannot be countenanced as the petitioner was indeed given an opportunity of being hearing by issuance of a personal hearing notices dated 22.11.2022 and 19.12.2022 before the impugned order dated 30.12.2022 was passed. It appears that the petitioner however did not opt to appear before the respondent before the impugned order was passed. The impugned order however considered the reply filed by the petitioner on 19.11.2022 and 12.12.2022. In any event, the fact remains that the petitioner has still not obtained any order under Section 154 of the Income Tax Act, 1961 rectifying the return filed by him under Section 139 of the Income Tax Act, 1961. Therefore, even if the petitioner had participated in the proceedings for personal hearing, it would have been merely an empty formality - a partial relief can be granted to the petitioner by permitting the petitioner to file a statutory appeal before the Appellate Authority i.e., Deputy Commissioner-ST (Appeal), Madurai, Tirunelveli Division, under Section 107 of the TNGST Act, 2017, within a period of 30 days from the date of receipt of a copy of this order, subject to the petitioner pre-depositing the amount as is contemplated under Section 107 of the TNGST Act, 2017 along with the proposed appeal. The writ petition is disposed off.
Issues involved: Challenge to order u/s 74 of TNVAT Act, 2017 without proper hearing, reliance on incorrect income tax return, lack of rectification order u/s 154 of Income Tax Act, 1961, opportunity for statutory appeal u/s 107 of TNGST Act, 2017.
Summary: The petitioner challenged an order dated 30.12.2022 passed u/s 74 of the TNVAT Act, 2017, without enclosing the detailed order initially. The petitioner claimed that the incorrect income tax return filed by an auditor led to the impugned order without proper hearing. The petitioner referred to relevant case laws and argued that assessment based on income tax returns is impermissible under TNGST Act, 2017. The petitioner also cited a recent decision setting aside an order for similar reasons. The Court considered arguments from both sides. The Court noted that the petitioner had initiated proceedings to rectify the income tax return but had not obtained an order to rectify it. The petitioner's claim of lack of personal hearing was refuted as notices were issued, and the petitioner did not appear. The Court emphasized the importance of obtaining a rectification order under the Income Tax Act, 1961. The petitioner's ongoing proceedings for rectification were highlighted, indicating that participation in the hearing would have been futile without a rectification order. A partial relief was granted to the petitioner, allowing them to file a statutory appeal before the Appellate Authority within 30 days, subject to pre-depositing the required amount. The Appellate Authority was directed to entertain and dispose of the appeal on merits and in accordance with the law. Recovery proceedings were ordered to be kept in abeyance for four weeks from the date of the order. The Writ Petition was disposed of without costs, and the connected Miscellaneous Petition was closed.
|
