V. George Vincent vs Commercial Tax Officer, Nagercoil, Kanyakumari

K. N. Basha, J.—These two writ petitions are arising out of the same cause of action as the writ petitioner is one and the same and he has come forward with this petition challenging the reassessment orders for the periods from 1999-2000 and 2000-01 and as such, both the writ petitions are taken up for final hearing together and disposed of by means of this common order. The learned counsel for the petitioner would mainly contend that the petitioner in these petitions challenged the earlier assessment orders passed by the very same respondent by filing two writ petitions in W. P. (MD) Nos. 6794 and 6795 of 2007 (V. George Vincent v. Deputy Commercial Tax Officer, Nagercoil [2008] 14 VST 60 (Mad)) and this court allowed the writ petitions and set aside the impugned assessment orders therein directing the respondent herein to provide the copies of whatever documents he has in possession for passing the order impugned in the writ petitions to the petitioner within a period of two weeks and in the event of the second respondent (therein) is not in possession of any of the documents, the second respondent shall also intimate the same to the petitioner or the second respondent shall send a letter to the petitioner enlisting the list of documents available with him and enclosing the copies of such documents which form the basis of the impugned order. The learned counsel would submit that as per the said order, this court also directed the respondent to afford opportunity to the petitioner to challenge those documents in accordance with law and thereafter, pass fresh assessment orders. It is contended that in spite of such directions, the respondent has not furnished any one of the documents which form basis for passing the assessment orders and no opportunity was afforded to the petitioner before passing the impugned assessment orders. The learned counsel for the petitioner would submit that the petitioner, after the remand, has not received any communication from the respondent except the letter intimating that the said documents were not available and the respondent has straightaway issued the pre-assessment orders and thereafter, passed the final orders. Therefore, it is contended that the assessment orders are liable to be set aside for the non-compliance of the direction given by this court.

Per contra, Mr. V. Pandi, learned Government Advocate, would contend that there is no illegality in the impugned orders passed by the respondent. It is contended that the respondent has summoned the petitioner to peruse the documents and take copies. But there was no response from the petitioner and as such, the petitioner cannot find fault with the respondent herein. The learned counsel for the respondent would further contend that the copies of the 300 odd bills, cheques and vouchers are not available with the respondent as the same were already seized by the Central Bureau of Investigation (CBI). It is contended that only after issuing the pre-assessment notice, the final orders of assessment are passed by the respondent/ authorities and such being the position, the petitioner cannot contend that he was not given any opportunity before passing the final orders.

This court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the impugned assessment orders as well as the orders passed by this court dated September 5, 2007 (V. George Vincent v. Deputy Commercial Tax Officer, Nagercoil [2008] 14 VST 60 (Mad) in W. P. (MD) Nos. 6794 and 6795 of 2007).

At the outset, it is to be stated that this court passed an order dated September 5, 2007 (V. George Vincent v. Deputy Commercial Tax Officer, Nagercoil [2008] 14 VST 60 (Mad) in W. P. (MD) Nos. 6794 and 6795 of 2007) filed by the petitioner herein directing the respondents as hereunder (page 63 in 14 VST) :

Under such circumstances, following the earlier order passed, which also arose as a result of the Central Bureau of Investigation (CBI) enquiry against the very same Bombay party these two writ petitions are also disposed of setting aside the impugned order and directing the respondent to provide the copies of whatever documents he has in possession for passing the order impugned in the writ petition, to the petitioner within a period of two weeks. If the second respondent is not in possession of any of the documents, the second respondent shall also intimate the same to the petitioner. In other words, the second respondent shall send a letter to the petitioner enlisting the list of documents available with him and enclosing the copies of such documents which form the basis of his impugned order. After forwarding such a letter enclosing copies of the available documents, the second respondent shall give an opportunity to the petitioner to challenge those documents in accordance with law and thereafter, pass fresh assessment orders. No costs. Consequently, connected M. P. No. 1 of 2007 in both the writ petitions are closed."

A reading of the abovesaid order makes it abundantly clear that this court directed the respondent herein to provide the copies of the documents, which were in the possession of the respondent and relied on by the respondent and further directed that in the event of non-availability of any document, the second respondent shall also intimate the same to the petitioner. It is seen that this court also directed him to furnish the list of documents which were not in his possession and also directed the respondent to give an opportunity to the petitioner to challenge those documents relied on by the assessment authority and thereafter, to pass fresh assessment orders.

At the outset, it is to be stated that the said directions have not been complied with by the respondent before passing the impugned orders in these two writ petitions. A perusal of the impugned orders in both the matters makes it crystal clear that there is absolutely no reference about affording opportunity to the petitioner or furnishing the copies of the documents relied on by the assessment-authority, viz., the respondent herein, as mentioned. It is pertinent to note that except issuing the pre-assessment notice and receiving the objection from the petitioner herein, the directions given by this court have not at all complied with by the respondent. It is relevant to note that even in the counter, it is categorically stated by the respondent that the copies of the 300 odd bills, cheques and vouchers are not available with the respondent. If the said version of the respondent is taken into consideration, this court has to come to the conclusion that there is absolutely no basis for passing the impugned assessment orders.

It is needless to state that it is for the assessing authority to give the reasons and to specify the particulars of the documents, on which, the assessment was made by the respondent. As far as the case on hand is concerned, the impugned assessment orders were passed not only in violation of the specific direction given by this court, but also in flagrant violation of principles of natural justice as the petitioner was not at all afforded any opportunity before passing the impugned assessment orders. In view of the aforesaid reasons, this court is left with no other alternative except to allow the writ petitions and to set aside the impugned assessment orders. Accordingly, the writ petitions are allowed and the impugned reassessment orders in TNGST904954/1999-2000 and TNGST 904954/2000-2001 respectively dated July 9, 2011 are set aside. Consequently, the respondent is directed to conduct fresh enquiry for passing the assessment orders by affording opportunity to the petitioner by providing the copies of the documents to be relied on by the respondent herein. In the event of non-availability of the said documents, it is also open to the respondent herein to get the documents from the investigating agency, viz., CBI, and thereafter, to furnish copies to the petitioner. It is made clear that the abovesaid exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order. It is further made clear that in the event of the documents are not available or the assessment authority, viz., the respondent herein is not able to get any document from the investigating agency, the same should be informed to the petitioner. No costs. Consequently, connected M. P. (MD) No. 1 of 2011 in both the petitions are closed.