2019 (8) TMI 122 - HC - VAT and Sales Tax

Best Judgement assessment - imposition of penalty u/s 27(3) of TNVAT Act - certain discrepancies between the audited report in the prescribed Form viz., Form WW regarding Tax Deduction at Source payment details and the returns filed by writ petitioner - Section 27 of TNVAT Act - opportunity has not been granted to writ petitioner - principles of natural justice - HELD THAT - The revisional notice clearly mentions about the proposal to impose penalty i.e., revisional notice dated 16.02.2018 and writ petitioner dealer also in the reply dated 15.03.2018 has put forth their stand with regard to proposal in the revisional notice - Furthermore, this is a case where respondent has noticed discrepancies between two returns both filed by writ petitioner dealer. While one is the usual monthly returns, the other is audited report in the prescribed Form viz., Form WW, both of which have been filed by writ petitioner. In the light of the revisional notice dated 16.02.2018 and reply to the same dated 15.03.20118, it cannot be gainsaid that writ petitioner has not been given an opportunity, as the revisional notice specifically mentions about proposal to impose penalty under Section 27(3) of TNVAT Act. Alternate remedy - HELD THAT - It is open to the writ petitioner to prefer a statutory appeal subject of course to the conditions for pre-deposit as well as the time frame for the appeal prescribed therein. Power to condone delay is vested in statutory appellate authority by the statute and therefore, if writ petitioner seeks condonation of delay, the same shall be dealt with by the statutory authority on its own merits and subject to the provisions of law including cap qua limitation under Section 51 of TNVAT Act. Petition dismissed.

Summary

Issues:
Assessment order under Tamil Nadu Value Added Tax Act, 2006; Imposition of penalty under wrong provision; Opportunity granted to the petitioner; Availability of alternate remedy.

Analysis:
The judgment concerns a writ petition under the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act) challenging an assessment order. The petitioner, a dealer under the TNVAT Act, was issued a revisional notice due to discrepancies between the audited report and filed returns. The impugned assessment order imposed a penalty under Section 27(1) of the TNVAT Act, which was later acknowledged as an error by the Revenue Counsel, clarifying that the penalty should have been under Section 27(3) of the Act.

Regarding the opportunity granted to the petitioner, it was argued that the petitioner had not been given a chance to present their case despite the penalty imposition. However, the court noted that the revisional notice clearly mentioned the proposal to impose a penalty under Section 27(3) of the TNVAT Act, and the petitioner had responded to this notice. The court emphasized that the petitioner had an opportunity to contest the penalty imposition.

The judgment also discussed the availability of an alternate remedy for the petitioner through an appeal before the jurisdictional appellate Deputy Commissioner under Section 51 of the TNVAT Act. The court highlighted the principle of alternate remedy, stating that while it is a rule of discretion, it must be applied rigorously in tax-related matters. Citing previous Supreme Court cases, the court emphasized the importance of exhausting statutory remedies before seeking relief through writ jurisdiction.

Ultimately, the court found no reason to interfere with the impugned assessment order and dismissed the writ petition, while preserving the petitioner's rights to file a statutory appeal subject to the conditions of pre-deposit and limitation. No costs were awarded, and the connected miscellaneous petition was closed.