9911796707
TMI Blog2011 (6) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... ers also imposed penalty under section 23 of the Act and the same is also questioned in the writ petitions. The petitioner is a company having the registered office at SIPCOT Industrial Complex, Madurai by Pass Road, Tuticorin. The petitioner was assessed by the respondent as per the turnover reported for the assessment years 2001-02, 2002-03 and 2003-04 under section 12 of the Act. The petitioner purchased machinery parts and accessories against the issue of form XVII declaration under section 3(5) of the Act. Based on the assessment orders for the assessment years 2001-02, 2002-03 and 2003-04, the tax was paid by the petitioner. While so, the respondent exercised his revisional power under section 16 of the Act. According to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of the amount payable under the impugned orders. Further, the Registry is directed to return the original impugned orders to the petitioner to prefer appeal. While passing the revision of assessment order dated February 27, 2008 for the assessment years 2001-02, 2002-03 and 2003-04, the respondent also passed an order under section 23 of the Act levying penalty on the petitioner. Admittedly, the petitioner was not personally heard. Section 23 of the Act contemplates reasonable opportunity of "being heard" in contrast to proviso to section 16(2) of the Act, wherein the wordings are differently used. Section 23 of the Act is extracted hereunder: "Levy of penalty in certain cases.-If any person purchasing goods is guilty of an offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity by way of "personal hearing" should be given to the petitioner. This court in the decision reported in [1995] 8 MTCR 55 (Mad) (Rajam Offset Printers v. Commercial Tax Officer) has been held that section 22(2) of the Act contemplates "personal hearing". Paragraph 8 of the said decision is extracted hereunder in this regard: "Mere giving of notice calling for objections can be neither considered as adequate opportunity in terms of the language of section 22(2) nor can it be substituted for personal hearing. In view of the plain and clear language of section 22(2) providing personal opportunity of hearing to the person concerned, I have no hesitation to say such a reasonable opportunity of hearing is imperative. In view of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 55 of the TNGST Act, 1959, without giving the assessee a personal hearing before the rectification is made." Therefore, applying the aforesaid principles, I am of the view that the petitioner should have been given a personal hearing before passing a penalty order, since section 23 of the Act is similarly worded like sections 22(2) and 55(1) of the Act. Hence, the impugned orders in so far as levying penalty is concerned are quashed and the matter is remanded back to the respondent to pass fresh orders after providing personal hearing. The writ petitions are disposed of as under: (i) The writ petitions are dismissed in so far as questioning the revised assessment of tax with liberty to the petitioner to prefer appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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