9911796707
TMI Blog2024 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court held that existence of alternate remedy will not disentitle the writ petitioner to invoke Article 226 of the Constitution when the action of the statutory authority is unfair and against the principles of natural justice. The facts involved in the case cited is different from the facts of the case in hand. It is not the case of the appellant that he was not given an opportunity. In fact, the impugned notice of the fourth respondent clearly indicates that the notice is to afford an opportunity for being heard and for participating in the proceedings. Therefore, by no stretch of imagination, the dictum laid in Mahindra and Mahindra Ltd. will apply to the case in hand. Section 22(2) and amendment to Section 28 of the TNVAT Act to be read together to understand the intention of the legislature. The returns filed prior to 19.06.2012 under the self assessment scheme, but no explicit assessment orders are passed in these cases. By introducing the deeming clause, the assessee gets the privilege of assessment. At the same time, to prevent escaped assessment, the authority is vested with the power to revise any return, which has been deemed to have been assessed by virtue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 and 2010-2011, on which assessment orders are not passed, shall be deemed to have been assessed on the 30th day of June 2012. While so, a revision notice under Section 28 of the TNVAT Act was caused on the appellant for the assessment years 2006-2007 to 2010-2011, giving retrospective effect to the amended provisions. 3 . The contention of the appellant is that, by way of deduction of 2% tax at the time of payment and on his declaration of the turnover for every assessment years, he is entitled for refund of tax. Whereas, the assessing authority after giving retrospective effect to an amended provision, has revised the assessment and caused show cause notice. The same was duly replied by the appellant. However, it was not accepted by the assessing authority and he had passed revised assessment order for the years 2006-2007 and 2007-2008, which are challenged in two different Writ Petitions in W.P.(MD)Nos.22540 and 22541 of 2015 and the revised assessment notice for the subsequent years also challenged before passing of any assessment order, since the act of the assessing authority resorting to the amended provision of Section 22(2) of the TNVAT Act, without passing any asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any returns filed for the years 2006-2007 to 2010-2011, on which no assessment order is passed, it shall be deemed that the returns been assessed on 30th day of June 2012. Admittedly, the returns filed by the assessee/appellant from the year 2006-2007 not been assessed and therefore, it should be deemed to have been assessed on 30.06.2012. The legislatures thought fit to introduce the deeming provision clause in Section 22(2) of the TNVAT Act, so that, any escaped assessment be subjected to the best judgment of the assessing officer in exercise of power under Section 28 of the TNVAT Act. At the same time, the limitation of six years been fixed for exercising the best judgment assessment by the assessing authority. 9 . In this case, the show cause notice under Section 28 read with Section 27(3) of the TNVAT Act was caused on 11.08.2015 well within the period of limitation. The assessee has been given opportunity to file letter of objection and to appear for personal hearing. While the assessee participated in the proceedings in respect of two assessment years, for the rest of the years 2008-2009 to 2013-2014, instead of participating in the proceedings, had appraoched this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;' 12 . The prayer in the Writ Petitions is to issue Writ of Certiorari calling for the records pertaining to the show cause notice and revised order issued by the fourth respondent. The learned Judge while hearing the batch of Writ Petitions filed by the appellant, had rightly observed that the show cause notice was issued affording the right to file objections and participate in the proceedings. The learned Judge further observed that whether the amended provision will apply to the assessee or not could have been agitated in the proceeding before the assessing authority, who is a fact finding authority. 13 . The assessee without exercising the statutory remedy available and allow the assessing authority as well as the appellate authority to consider the objections if any, had resorted to file Writ Petitions, which cannot be permitted. The learned Judge has also relied upon the dictum of the Hon'ble Supreme Court to butress his opinion. 14 . For easy reference, the operative portion of the order passed by the learned Judge is extracted hereunder:- ''2. The learned counsel appearing for the petitioner submitted that one of the grounds raised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment, is not having the jurisdiction. On the other hand, the competent authority has passed the order of assessment, after giving due opportunity of hearing to the petitioner and by considering the objection raised by them. Needless to say that if the consideration of objection was not proper or erroneous, that cannot be a ground to maintain the writ petition, since the alleged erroneous consideration or improper consideration cannot be stated as violation of principles of natural justice. On the other hand, it may be a good ground for filing an appeal. Therefore, when the present assessment order having been passed by the competent authority, after giving opportunity of hearing to the petitioner, the same cannot be questioned under Article 226 of the Constitution of India, as the petitioner has to raise all those grounds only before the appellate authority who is also a fact finding authority. 4. Accordingly, all these writ petitions are dismissed, however, with liberty to the petitioner to challenge the order impugned in these writ petitions before the appellate authority within a period of two weeks from the date of receipt of a copy of this order. No costs. Connecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deeming clause, the assessee gets the privilege of assessment. At the same time, to prevent escaped assessment, the authority is vested with the power to revise any return, which has been deemed to have been assessed by virtue of Section 22(2) of the TNVAT Act and such power to revise, is restricted to the period of six years. In this case, the revision sought to be made within three years that is well within the time prescribed. Hence, no illegality could be attributed. Further, unless the amendment is given retrospective effect, the amendment brought to Section 28 of the TNVAT Act will become otiose. 20 . In this case, the assessing authority while causing the show cause notice has given opportunity to the assessee to participate in the proceedings. The order of the assessing authority is not final. The statute provides for appeal remedy. Hence, this Court finds that the Writ Petitions are frivolous litigations initiated by the assessee to circumvent the procedure established. Hence, this Court finds no merit in the Writ Appeals. Accordingly, the Writ Appeals are dismissed and the order of the learned Judge is confirmed. There shall be no order as to costs. Consequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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