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TMI Blog2024 (7) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy under residuary entry viz., Entry 69 of Part C of the First Schedule to the TNVAT Act, an entry different from that which was proposed in the notice dated 17.04.2023 - the assessment orders insofar as they classify the AAC Blocks sold by the appellant under the residuary entry viz, Entry 69 of Part C of First Schedule to the TNVAT Act marks a departure from the Show cause notice. Notice is not an empty formality but a mandatory requirement intended to put the assessee on notice of the reason on the basis of which the revenue intends to assess. It is trite law that a notice must contain the reasons to which the noticee is required to respond - it is essential to disclose the reasons to enable the noticee to give a reply/ response, for it is rudimentary that the noticee should be made aware of all that which influence the decision maker and which he has to meet. If the reasons which are set out in the notice to which the noticee is required to respond and the reasons contained in the order are different, the issuance of the notice would fail to serve its purpose and would be reduced to an empty formality. That means, it would neither qualify as a notice nor serve the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 2017-18 which were challenged by way of writ petitions which stood rejected on the ground of existence of alternate remedy. The present appeals are against the above order of the learned Judge. 4. Before proceeding further, we intend to clarify that the learned Judge in W.P.No.31103 of 2019 dated 09.09.2022, found that the application and the order of ARA would not survive while directing the respondent authority to complete the assessment within a period of 16 weeks. The relevant portion of the said order is extracted hereunder: 5. In the counter filed the respondents, they rely on the provisions of Section 174 of the TNGST Act to take aid from the saving provisions. However, in view of the stand taken by the petitioner, I need hardly address the defence taken by the respondents as I accede to the submissions made by the petitioner, conclude that, both the application and the impugned order would survive no longer. 5. The learned Judge vide order dated 25.09.2023 after recording the above observations made in the earlier round of litigation, viz., in W.P.No.31103 of 2019 proceeded to find that the ARA would be binding on the appellant in terms of Section 48A(3) of the TNVAT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the TNVAT Act. However, the impugned orders of assessment are made levying tax at 14.5% on the sale of AAC Block made by the appellant on the premise that they are liable to be classified under Entry 69 of part I schedule to the TNVAT Act i.e., which reads as ANY OTHER GOOD, NOT SPECIFIED IN ANY OF THE SCHEDULE 11. It is the case of the appellant that until the impugned orders of assessment the respondent authority had only treated and proposed to classify the AAC Block sold by the Appellant as falling under Entry 22 of Part C of the First Schedule. The impugned orders thus mark a departure from the Show Cause Notice thereby, denying the appellant's opportunity to put forth his case against classification of AAC Blocks under the residuary entry viz., Entry 69 of Part C of the 1st Schedule to the TNVAT Act. 12. To the contrary, it is submitted by the learned counsel for the Respondent that this is the third round of litigation and the order of the learned Judge insofar as rejecting the writ petitions on the ground of existence of alternative remedy does not warrant interference. 13. Heard both sides and perused the materials on record. 14. We find that there is merit in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son on the basis of which the revenue intends to assess. It is trite law that a notice must contain the reasons to which the noticee is required to respond. In other words, it is essential to disclose the reasons to enable the noticee to give a reply/ response, for it is rudimentary that the noticee should be made aware of all that which influence the decision maker and which he has to meet. If the reasons which are set out in the notice to which the noticee is required to respond and the reasons contained in the order are different, the issuance of the notice would fail to serve its purpose and would be reduced to an empty formality. That means, it would neither qualify as a notice nor serve the object of issuance of notice. 16. Notice forms the foundation of the case and any departure without putting the appellant on notice would prove fatal to the validity of the proceedings for being in violation of principles of natural justice. In this regard, it may be relevant to refer to the following judgments: i) CIT v. ICICI Bank Ltd., reported in 2012 SCC OnLine Bom 917 : (2012) 349 ITR 482: 16.............. Thus, the basis of the order is completely different from the reasons recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made clear that Rule 7 of the Valuation Rules, 1975 will not be invoked and applied to the facts of this case as it has not been mentioned in the second and the third show-cause notices. It is well settled that the show-cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules, 1975 in the show-cause notice, it would not be open to the Commissioner to invoke the said Rule. (emphasis supplied) 16.1. From a reading of the above judgments, it leaves no room for any doubt that an order made in departure of the show cause notice without putting the assessee on notice cannot be sustained as the same is in violation of principles of natural justice and thus cannot be sustained. The impugned orders of assessment suffer from the above vice and thus cannot be sustained. While it is true that existence of alternative remedy is a factor which would weigh in the mind of the Courts while exercising its discretionary power of judicial review under Article 226 of the Constitution, however, the same is not an absolute bar to examine jurisdiction under Article 226 of the Constitution. It is trite law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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