2017 (7) TMI 227 - HC - VAT and Sales Tax

Levy of tax - unbranded sweets - Section 7(1)(a) of the Act - 14.5% or 2%? - penalty - natural justice - the Assessing Officer was largely guided by the proposal of the Enforcement Wing and the stand taken by the petitioner before the Enforcement Officials as the pre-revision notices itself were a sequel to the report of the enforcement group, dated 29.04.2016 - Held that - It is well settled legal proposition that the Assessing Officer is an independent authority and quasi- judicial authority, who is required to complete the assessment based on the materials placed before it and not to be guided or act on the dictates of its superiors. If it is so done, it would amount to a clear case of abdication of the duties and responsibilities of the Assessing Officer. The various dates on which replies and representations were made by the petitioner would clearly indicate that there was a clear attempt on the part of the petitioner to drag the matter. A perusal of the impugned Assessment Orders, more particularly from Paragraph No.3, clearly indicates that the Assessing Officer found fault with the petitioner for failure to produce documents before the Enforcement Wing or before her. Thus, considering the facts and circumstances of the case and the issue as to whether the product sold by the petitioner is to be taxed at 14.5% or 2% is required to be decided, we are of the view that the matter can be remanded to the Assessing Officer for fresh consideration subject to stringent conditions - appeal allowed by way of remand.

Issues Involved:
1. Validity of the interim stay order.
2. Challenge to the assessment orders for the years 2009-2010 to 2014-2015.
3. Levy of tax at 14.5% versus 2% for unbranded sweets.
4. Imposition of penalty and its legality.
5. Alleged abdication of quasi-judicial power by the Assessing Officer.
6. Basis of assessment on one-day collection.
7. Procedural lapses and principles of natural justice.

Detailed Analysis:

1. Validity of the Interim Stay Order:
The appeals were directed against the interim order which required the appellant to deposit 10% of the tax demanded before 31.03.2017 and another 10% within three weeks. The court took up the writ petitions for final disposal with consent from both parties.

2. Challenge to the Assessment Orders:
The petitioner, a Dealer of Sweets and Savouries, challenged the assessment orders for 2009-2010 to 2014-2015. The primary contention was that the Assessing Officer levied tax at 14.5% instead of 2% as per Section 7(1)(a) of the Tamil Nadu Value Added Tax Act for unbranded sweets.

3. Levy of Tax at 14.5% versus 2% for Unbranded Sweets:
The petitioner argued that the tax should be 2% for unbranded sweets, as per the Act. The court noted this contention but did not provide a final ruling on the tax rate, instead remanding the matter for fresh consideration.

4. Imposition of Penalty and Its Legality:
The petitioner challenged the imposition of penalties in addition to the tax. The court observed that some assessment orders included both tax and penalties, and the petitioner questioned both aspects. The court noted that the Assessing Officer must independently assess the imposition of penalties and not be solely guided by the Enforcement Wing's proposals.

5. Alleged Abdication of Quasi-Judicial Power by the Assessing Officer:
The petitioner argued that the Assessing Officer was unduly influenced by the Enforcement Wing's proposals, which is illegal. The court agreed, stating that the Assessing Officer must act independently and not merely follow the Enforcement Wing's directions. The reliance on the Enforcement Wing's report was a significant issue, and the court emphasized the need for the Assessing Officer to exercise independent judgment.

6. Basis of Assessment on One-Day Collection:
The petitioner contended that the assessment based on one-day sales was improper. The court referenced the case of State of Tamil Nadu vs. New Kamaliya Hotel, which held that one-day sales could not be used to estimate annual turnover without considering seasonal variations. The court found the method used by the Assessing Officer to be flawed.

7. Procedural Lapses and Principles of Natural Justice:
The court noted procedural lapses, including the failure to issue a final notice for personal hearing and the undue reliance on the Enforcement Wing's report. The court emphasized that the Assessing Officer must provide a reasonable opportunity for the petitioner to present their case and must record specific reasons for rejecting the petitioner's contentions.

Conclusion and Directions:
The court remanded the matter to the Assessing Officer for fresh consideration with stringent conditions:
- The petitioner must deposit an additional 5% of the tax demanded within three weeks.
- The petitioner must furnish a bond for the full value of the penalty.
- The impugned assessment orders are to be treated as show-cause notices.
- The petitioner must submit objections within fifteen days after the stipulated period.
- The Assessing Officer must fix a date for a personal hearing and allow the petitioner to produce all relevant documents.
- The Assessing Officer must complete the assessment within three weeks after the personal hearing.
- The Assessing Officer should not adjudicate issues pending in related writ petitions.

Failure to comply with these conditions would result in the dismissal of the writ petitions and revival of the original assessment orders. The court closed the writ appeals and connected miscellaneous petitions without costs.

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