G. Bala Mohanan Pillai vs The Assistant Commissioner of Commercial Taxes

R. Subbiah, J.—The writ petition has been filed for issuance of Writ of Certiorarified Mandamus calling for the records on the file of the Respondent in CST. No. 836034/2012-13 dated 7.04.2014 and to quash the same as illegal arbitrary and in violation of the principles of natural justice and to direct the respondent to consider the representation of the petitioner dated 03.5.2014 on re-submission together with the Form-C and Form-H declarations and re-open the assessment and receive declaration forms and pass orders, according to law within a time frame.

In the affidavit filed in support of this petition, it has been averred that the petitioner is an assessee on the file of the respondent. For the assessment year 2012-2013, the petitioner reported a total and taxable turn over of Rs. 13,54,724/- under the Central Sales Tax Act. The respondent issued a pre-assessment notice dated 18.12.2013 stating the petitioner has wrongly reported the export sales turnover of Rs. 3,34,49,342/- under Section 5(3) of the CST Act in the Form-I return filed under the Tamil Nadu Value Added Tax Act. For the non-filing of Form ''H'' declaration and supporting documents relating to the claim of exemption for export sales, the respondent proposed to disallow the claim of exemption. For the non-filing of Form ''C'' declaration for the inter-state sales turn over of Rs. 13,54,724/-, the concessional rate of tax claimed at 2% is proposed to be disallowed and the turnover is proposed to be taxed at 5%. The petitioner requested for the grant of time to submit the Form-C declarations and Form-H declarations on the ground that the petitioner has to receive few more declaration forms from the exporters and inter-state purchasers and that the petitioner has been taking very active and earnest steps to collect the declaration forms. The non-receipt of the balance declarations was beyond the control of the petitioner. The petitioner initially requested 35 days time to produce the declaration forms. Since he was unable to collect all the declaration forms, the petitioner requested for further time of two months. It is the further case of the petitioner that even before the expiry of the period, the petitioner produced all the available Form-c declarations and Form-H declarations before the respondent on 18.03.2014. He also requested for a month''s time to produce the balance declarations. But in the mean while, without issuing any notice, before the expiry of the time for reply, the respondent has passed the impugned assessment order, dated 07.04.2014, disallowing the claim of exemption for the sales turn over under Section 5(3) of the CST Act on a turnover of Rs. 3,34,49,342/- on the ground of non- production of the Form-H declarations. The respondent also disallowed the concessional rate of tax for the inter-state sales turnover of Rs. 13,54,724/- and levied tax at 5% for the non-production of Form-C declarations. The respondent levied a tax of Rs. 17,40,203/-. On receipt of the assessment order on 11.04.2014, the petitioner sent a representation on 03.05.2014 to the respondent requesting him to reopen the assessment order under Section 22(6) of the TNVAT Act r/w Section 9(2) of the CST Act and the Circular issued by the Commissioner of Commercial Taxes. The petitioner gave the details of the Form-H declarations in his hand for the export sales turnover of Rs. 3,34,40,459/-. The petitioner also gave the details of the Form-C declarations in his hand for the inter-state sales turnover of Rs. 11,01,924.00 and requested time to produce the balance Form-C declaration for Rs. 1,82,800.00. Along with the representation, he also enclosed the copies of all the Form-H declarations and available Form-C declarations and also submitted revised returns. Though the respondent received the representation along with records on 08.05.2014, without considering the same, he returned it along with the documents. Hence, aggrieved over the same, the present writ petition has been filed.

When the matter is taken up for consideration, the learned counsel for the petitioner submitted that in view of the various decisions of this Court and the Honourable Supreme Court, the administrative circulars issued by the Commissioner of Commercial Taxes are binding on the Assessing Authorities. Hence, the respondent ought to have acted on the representation of the petitioner and re-opened the assessment and received the declaration forms.

But the learned counsel for the respondent formally raised objection to the prayer of the writ petitioner stating that the petitioner is having appellate remedy. He has failed to file an appeal within the period of limitation.

Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader, appearing for the respondent and also perused the materials available on record.

Irrespective of the submissions made by either counsel, without going into the merits of the matter, based on the circulars dated 29.06.1999 and 28.02.2001, issued by the Commissioner of Commercial Taxes, Chennai, this Court is constrained to pass the following Order.

Accordingly, this writ petition is allowed and the impugned order passed by the respondent in CST. No. 836034/2012-13 dated 7.04.2014 is quashed on imposing certain conditions and matter is remanded back to the respondent for passing fresh orders. Accordingly, the petitioner is directed to pay 10% of the tax within four weeks from the date of receipt of a copy of this order. On such payment, the respondent is directed to consider the representation of the petitioner dated 03.05.2014 on re-submission together with the Form-C and Form-H declaration forms and re-open the assessment and receive the declaration forms and pass orders in according to law, within a period of four weeks thereafter. Consequently, connected M.P.(md). No. 1 of 2014 is closed. No costs.