Millennium Motors vs Commercial Tax Officer and Another

N. Paul Vasanthakumar, J.—The prayer in these writ petitions is to quash the impugned proceedings dated April 20, 2008 and January 9,

2008 passed for the assessment years 2002-03, 2003-04, 2004-05, 2005-06 and 2006-07, respectively.

The Petitioner in these cases is the authorised selling agent for SKODA motor cars and it is registered as a dealer on the file of the first

Respondent under the Tamil Nadu General Sales Tax Act, 1959 and under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act,

1990. The Petitioner being an importer of motor vehicles from other States, is liable to pay entry tax u/s 3 of the Entry Tax Act on the entry of the

motor vehicles into the State of Tamil Nadu. As per Section 4(1) of the Entry Tax Act, the importer on the sale of such motor vehicles is entitled to

reduction of tax liability under the Tamil Nadu General Sales Tax Act, 1959, and Tamil Nadu Additional Sales Tax Act, 1970, to the extent of

entry tax paid. From November 1, 2001 every dealer was liable to pay additional sales tax under the Tamil Nadu Additional Sales Tax Act, when

the taxable turnover under the Tamil Nadu General Sales Tax Act exceeds Rs. 10 crores. According to the Petitioner, for the assessment years

2002-03, 2003-04 and 2004-05, the Petitioner duly reported their sales in the monthly returns and claimed set-off of the entry tax paid towards

sales tax payable. Insofar as the additional sales tax was concerned, on the turnover crossing the taxable limit of Rs. 10 crores, the excess entry tax

available after adjusting the sales tax due were adjusted towards the additional sales tax. According to the Petitioner, the Respondent is yet to

complete the assessment of the Petitioner for the years 2002-03, 2003-04, 2004-05 under the Tamil Nadu General Sales Tax Act. The

Respondent issued proceedings dated April 20, 2008 and stated that the Petitioner has paid additional sales tax dues belatedly during the years

2002-03, 2003-04, 2004-05 which attracts levy of penal interest u/s 2(1)(aaa) of the Tamil Nadu Additional Sales Tax Act. In the said

proceedings a demand for penal interest for the above periods was made without even issuing a show-cause notice.

The said action of the Respondent in straight away raising a demand for penal interest without notice, is challenged in these writ petitions on the

ground that u/s 2(1) (aaa) of the Tamil Nadu Additional Sales Tax Act, penal interest can be levied applying Section 24(3) of the Tamil Nadu

General Sales Tax Act, for any belated payment of additional sales tax if it remains unpaid. In these cases till date assessments are not completed

and therefore there cannot be any imposition of any additional sales tax and consequently no penalty could be imposed. The Petitioner also

contends that the principal Commissioner, in exercise of powers u/s 28A of the Tamil Nadu General Sales Tax Act, 1959, issued clarification on

April 20, 2001 and the same has not been followed by the Respondent while passing the impugned orders.

The Respondent has filed counter-affidavit stating that the Petitioner has not paid additional sales tax due on the dates along with monthly returns

filed for every month and they have paid additional sales tax belatedly and therefore interest was levied u/s 24(3) of the Tamil Nadu General Sales

Tax Act, 1959, read with Section 2(1) (aaa) of the Tamil Nadu Additional Sales Tax Act, 1970, for each of the assessment years separately. As

against the said orders, if the Petitioner is aggrieved, it can prefer revision petitions before the Deputy Commissioner u/s 33 of the Act and if the

Petitioner is still aggrieved, it can file second revision before the Joint Commissioner u/s 35 of the Act and the writ petitions filed, straight away

without availing of the alternate remedy, are not maintainable.

Heard the learned Counsel for the Petitioner as well as the learned Additional Government Pleader (Taxes) for the Respondent.

Admittedly, the impugned orders are passed on the alleged ground of belated payment of additional sales tax and penalties are imposed. When

penalty is imposed, the Respondent has not issued any notice and no occasion arose for considering the objection. In the circular dated April 20,

2001 the principal Commissioner issued directions to the assessing authorities to bear in mind certain procedures to be followed while levying

penalty under the Tamil Nadu General Sales Tax Act, 1959. In paragraph 18, Clauses (5) and (6), it is stated as follows:

(5) Notice shall always be issued before imposing any penalty. Though penalty u/s 24(3) is automatic, issue of notice is desirable since there

may be disputes on the actual amount of arrears, number of days of delay and the calculation of penalty. The notice to levy penalty shall contain the

details of amount of arrears, due date for payment, date of payment, No. of days delay and the penalty payable.

(6) Some assessing officers straight away issue notices to the dealers demanding to pay 24(3) penalty without actually passing any order. An order

should be passed u/s 24(3) accompanied by form 54, so that the period of limitation can be calculated to file revision petition.

In the decision reported in Commissioner of Central Excise, Bolpur Vs. Ratan Melting and Wire Industries, it is held that the circular issued by

the Department is binding on the authorities under the respective statute, if there is no contra judgment of the High Court and the Supreme Court,

declaring the law on the question. Same is the view expressed by the honourable Supreme Court in its earlier decision reported in Union of India v.

Arviva Industries (I) Ltd. (2007) 209 ELT 5.

In the case on hand, the Respondent being the subordinate officer, is bound to follow the said circular and admittedly the same is not followed,

while passing the impugned order. By issuing notice and by giving opportunity to the Petitioner, the right of the Respondent will not be affected in

any manner and the Petitioner would be in a position to state its case and defence, if any, for not levying such penalty. Hence the impugned orders

passed in violation of the said circular, cannot be sustained.

On the above limited ground of not giving notice and opportunity of hearing to the Petitioner before imposing penalty, the impugned orders are

set aside and the matters are remitted back to the Respondent. The first Respondent is directed to issue notice to the Petitioner with regard to the

liability of the Petitioner to pay penalty amount, within a period of two weeks from the date of receipt of copy of this order. The Petitioner is given

two weeks time to submit his explanation and on receipt of such notice, the Respondent is directed to consider the same and proceed further in the

matter in accordance with law. If the impugned orders are found sustainable after fresh orders are passed, the same may be enforced. Till fresh

orders are passed as stated above, the impugned orders shall not be enforced.

The writ petitions are ordered on the above terms. No costs. Connected miscellaneous petitions are closed.