2019 (9) TMI 699 - HC - VAT and Sales Tax

Validity of revised assessment orders - TNVAT Act - grant of reasonable opportunity of being heard - principles of natural justice - HELD THAT - This Court has already held that the two provisos under Section 22 (4) and proviso to Section 27(1) (2) of TNVAT Act, are different as one makes a reasonable opportunity of being heard statutorily imperative, whereas the other merely makes reasonable opportunity to show cause against the impugned orders statutorily imperative. However, considering the nature of this matter, it may not be necessary to delve further into this aspect. In the instant cases on hand, the respondent Assessing Officer in his wisdom and at his discretion has chosen to offer personal hearing or otherwise given an opportunity of personal hearing to the writ petitioner. There is no disputation on this aspect of the matter. In this regard, it will suffice to say that with regard to proviso to Sub Sections (1) (2) of Section 27, this Court has held that the expression used therein will not impede or denude the discretion of the Assessing Officer to grant personal hearing in a given case depending on the factual matrix in that case. It is clear that though the writ petitioner was given an opportunity of personal hearing not once but on two occasions, the writ petitioner did not go over to the office of the respondent. On the contrary, writ petitioner now avers in the affidavits filed in support of the writ petitions that the writ petitioner was awaiting a notice for appearance on a particular date and time for filing evidence along with under cover of reply letter dated 09.01.2019. In this regard also, what is of utmost significance in the considered view and opinion of this Court is, the clincher is that the writ petitioner has not articulated in the reply dated 09.01.2019 (second revisional notice) that they are expecting the respondent Assessing Officer to specify a date and time for personal hearing. In the instant case, this Court notices that there is no explanation, as to why the writ petitioner did not mention in the reply to the second revisional notice (at least) for a specific date and time for personal hearing. Even if that not be so, it has not even been mentioned in both replies i.e., replies to first revisional and second revisional notices that the writ petitioner is expecting a communication from the respondent Assessing Officer regarding personal hearing. The instant writ petitions are dismissed albeit without expressing any opinion or view on the merits of the matter so as to ensure that an effective appeal remedy is available to the writ petitioner.

Summary

Issues Involved:
1. Common factual matrix and assessment years.
2. Pivotal submission regarding personal hearing.
3. Provisions of law under which revised assessment orders were passed.
4. Opportunity of personal hearing.
5. Relegation to alternate remedy of statutory appeal.
6. Delay condonation aspect.

Issue-wise Detailed Analysis:

1. Common Factual Matrix and Assessment Years:
The petitions arise from a common factual matrix under the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act), concerning seven successive assessment years from 2009-2010 to 2015-2016. Despite various averments and grounds in the affidavits, the core issue remains the same across all petitions.

2. Pivotal Submission Regarding Personal Hearing:
The central argument focused on the lack of personal hearing. The petitioner, a dealer under the TNVAT Act, was subjected to deemed assessment under Section 22. Following an inspection by the Enforcement Wing, revisional notices were issued, and objections were filed by the petitioner. Despite opportunities for personal hearing being provided in the revisional notices, the petitioner did not avail them.

3. Provisions of Law Under Which Revised Assessment Orders Were Passed:
The revised assessment orders, though not specifying the provisions, were understood to be passed under Section 27(1)(a) and 27(2) of the TNVAT Act. The relevant proviso requires a reasonable opportunity to show cause but does not mandate a personal hearing, unlike the proviso to Section 22(4).

4. Opportunity of Personal Hearing:
The court noted that the Assessing Officer, using discretion, provided opportunities for personal hearing in both the revisional notices dated 27.01.2017 and 29.12.2018. The petitioner, however, did not attend the hearings or request specific dates and times for them. The petitioner’s affidavits claimed they awaited a notice specifying the hearing date, but this was not articulated in their replies to the revisional notices.

5. Relegation to Alternate Remedy of Statutory Appeal:
The court emphasized the rule of alternate remedy, particularly in tax matters, referencing the Dunlop India case and subsequent Supreme Court judgments. Given the petitioner’s failure to avail personal hearing opportunities and the factual nature of the contentions, the court deemed it appropriate to direct the petitioner to the statutory appeal under Section 51 of the TNVAT Act.

6. Delay Condonation Aspect:
The court acknowledged that the statutory appeal must be filed within 30 days from the service of the order. The petitions were filed within the permissible delay period if the time spent in the writ petitions is excluded under Section 14 of the Limitation Act. The court allowed this exclusion and directed that any remaining delay be addressed by the Appellate Authority.

Conclusion:
The writ petitions were dismissed without expressing any opinion on the merits, preserving the petitioner’s right to file statutory appeals. The Appellate Authority is permitted to provide personal hearings and examine all objections. The connected miscellaneous petitions were also dismissed, and no costs were awarded.