Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:12.02.2015 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD)Nos.579 OF2015to 581 of 2015 and M.P.(MD)Nos.1 to 3 of 2015 M/s.Ricky Enterlprises Represented by its Proprietor No.@/5, Parameswari Amman Koil Street, Aruppukottai Road, Madurai ?. 625 012 ... Petitioner in all Wps Vs. The Commercial Tax Officer, Tirupparankundram Circle, Madurai ?. 20 ... Respondent in W.Ps. PRAYER IN W.P.579/2015: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the impugned proceedings of the respondent in TIN.33146232022/2013-14, 33146232022/2011-12 33146232022/2012-13 and 33146232022/2013-14 respectively and quash the impugned order dated 12.12.2014 as passed by the respondent contrary to the provisions of the TNVAT Act and principles of natural justice and to further direct the respondent to provide the details requested by the petitioner in its preliminary objections dated 19.03.2014 and in its letters dated 25.08.2014 and 01.12.2014 and also grant an opportunity to the petitioner to cross examine the alleged buyers and thereafter to file objections which may be considered by the respondent with an independent mind and pass a fresh assessment order in accordance with law not being influenced by the proposals received from the enforcement wing officials in view of the law laid down by the Division Bench of the Madras High Court in the case of State of Tamil Nadu Vs. ANS Gupta and Sons, reported in 38 VST45 !For Petitioner : Mr.P.Rajkumar in all W.Ps. ^For Respondent : Mr.A.Muthukaruppan (For R1 in all Wps) Addl.Govt.Pleader :COMMON ORDER
Since the issue involved in all the Writ Petitions are one and the same, a common order is passed.
2. These Writ Petitions have been filed mainly on one ground that the petitioner has not been given a personal hearing inspite of the fact that he has specifically pleaded for personal hearing, which is mandatory, under Section 22(4) of TNVAT Act. Even though the petitioner requested for a personal personal hearing, yet it has not been given. Further, he would also contend that a Division Bench of this Court in Tamil Nadu Vs. A.N.S.Guptha and Sons reported in (2011) 38 VST45(Mad), ( in which I was a party) it has been held that granting of documents as well as personal hearing are not an empty formalities.
3. The learned counsel appearing for the petitioner would also point out that the relevant documents sought for was given only on 19.11.2014 and thereafter, on 25.11.2014, he sought for time for one month to enquire into the matter. Again on 01.12.2014 he sent further objection and specifically sought for a personal hearing, but without giving personal hearing, the order was passed on 12.12.2014. He has also stated that, as per the time granted was one month time and the time was sought for only on 25.11.2014, if one month time is granted, the impugned order should not have been passed much earlier I.e., on 12.12.2014, which is premature. The learned counsel, therefore would submit that the impugned orders are not in accordance with law and violates in principles of natural justice and therefore, the same are liable to be set aside.
4. The learned counsel Additional Government Pleader appearing for the respondent has filed a counter and as per the counter, an inspection was made on 18.03.2014 and it was found that a huge evasion of tax was found and therefore, notice was issued on 30.06.2014, which was received on 04.07.2014. On receipt of notice, the petitioner sent a reply on 09.07.2014, seeking for one month time, which was granted. Thereafter, again he made a request on 06.08.2014, which was also granted. Again, the petitioner sought for some details of documents on 25.08.2014. Though a reply was sent on 28.08.2014 that was sent returned with an endorsement as 'left', but the details, which was sought for by him were obtained by the Department on 11.11.2014 and was communicated to the petitioner on 19.11.2014. Thereafter, the petitioner sought further time on 25.11.2014 and the time, as requested by the petitioner, was granted. In the meanwhile, taking into consideration the reply, the respondent has passed the final orders and according to them, the petitioner is evading to pay the tax and without filing an appeal or paying 25% tax, have come forward with these writ petitions.
5. I have heard the learned counsel appearing on either side and perused the materials available on record.
6. At the outset, the only ground raised by the petitioner is that personal hearing has not been granted. It is true that notices have been issued and documents have been given and reply have been given. In the last letter, dated 25.11.2014, the department itself has given the time of one month, as sought for by the petitioner and at the same time, the petitioner made another representation on 01.12.2014, seeking for personal hearing and without giving an opportunity of personal hearing, the impugned orders have been passed on 12.12.2014. If the last time granted is taken into account i.e., on 25.11.2014, the one month time has expired only on 24.12.2014, but even before that time, the impugned orders have peen passed on 12.12.2014. Not only that, the order has been passed without giving a personal hearing. It is mandatory that personal hearing is to be granted under Section 22(4) of the 'Act' and that vital fact has not been taken into consideration. Further in the judgment of the Division Bench reported in (2011) 38 VST45(Mad), (cited supra) ( in which I was a party) it has been held that giving the documents as well as granting of personal hearing is not an empty formality.
7. Therefore, the present impugned orders, which have been passed on 12.12.2014, without giving an opportunity of personal hearing is not correct. The contention that if the petitioner has been given the personal hearing, he would have clearly explained the details regarding the information, which was taken from the web-site and the same are not the actual one. It is for the petitioner to prove that the bill whether it is given by him or not. But the only thing is that, at this juncture, this court can only say that the petitioner will be given an opportunity of personal hearing, which has not been granted, as per the provision. Therefore, without waiting for any further notice, since even as per the original time on 25.11.2014 has already gone, the petitioner shall appear before the authority concerned on 25.02.2015, without waiting for any notice and the authority is directed to give personal hearing to the petitioner on that day and thereafter to pass appropriate orders, in accordance with law.
8. The Writ Petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. 12.02.2015 Index : Yes / No Internet : Yes/ No MPK Note : Issue order copy on 18.02.2015 To The Commercial Tax Officer, Tirupparankundram Circle, Madurai ?. 20 B.RAJENDRAN,J.
MPK W.P.(MD)Nos.579 to 581 of 2015 12.02.2015