IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :09.07.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No. 7850 of 2008 & M.P.Nos.1 & 2 of 2008 M/s.V.Win Textiles Rep. by its Proprietor, Mr.P.Viswanathan, Previously New Ramakrishna Building, Tirupur, Now at No.7, Nethaji Nagar, 1st Street, Karumarampalayam, Mannarai Post, Tirupur – 641 607. ... Petitioner Vs. 1.The Deputy Commercial Tax Officer, Kongunagar Assessment Circle, Tirupur. 2.The Branch Manager, Bank of India, Tiruppur. ..Respondents Prayer : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus to call for the records on the files of the 1st respondent in TNGST, Assessment No.275543/94-95 dated 02.03.2006 and quash the same as being contrary to the principles of natural justice and further direct the respondent to pass order afresh in accordance with law. For Petitioner : Mr.R.Senniappan For Respondents : Mr.J.Ganesan G.A.(T) for R1 No Appearance - R2 ORDER By consent, the main writ petition itself is taken up for disposal. https://hcservices.ecourts.gov.in/hcservices/ 2. The prayer in the writ petition is for issuance of writ of Certiorarified Mandamus to quash the order of assessment dated 02.03.2006. 3. The petitioner is a registered dealer under the provision of Central Sales Tax Act (CST) and Tamil Nadu General Sales Tax Act (TNGST). The first respondent passed an order of assessment on 28.02.1997 for the assessment year 1994-95, in which the claim for exemption on export was disallowed for non-production of the orders from the foreign buyers. Aggrieved by such order of assessment, the petitioner filed an appeal before the Appellate Assistant Commissioner and the appellate authority by order dated 28.11.2005, set aside the order of assessment and remanded the matter to the assessing officer for fresh disposal and the petitioner was directed to file the copies of the foreign buyer's order and other records before the assessing officer to claim exemption under Section 5(3) of the CST Act. 4. According to the petitioner, after the order passed by the appellate authority, the petitioner approached the assessing authority and produced the copies of the records including the foreign buyer's order, but the assessing authority informed the petitioner that the assessment file has not been received from the office of the appellate authority and directed the petitioner to produce the records after intimation is received from the office of the first respondent. While, the matters stood thus, the first respondent by order dated 02.03.2006, ordered that the original order of assessment dated 28.02.1997 stands confirmed and demanded tax and penalty. This order dated 02.03.2006 is impugned in this writ petition. 5. The impugned order is assailed on the ground that it is contrary to the direction issued by the appellate authority and in violation of the principles of natural justice as no notice or opportunity was given to the petitioner prior to passing the order. Further, it is contended that the question of confirmation of the order of assessment dated 28.02.1997 does not arise, since the appellate authority had already set aside the same and the matter was remanded for fresh consideration. Therefore, the impugned order is out come of non-application of mind. The learned counsel appearing for the petitioner would point out that in the original order of assessment dated 28.02.1997, there was no penalty levied under Section 12(3)(b) of the TNGST Act, but in the present impugned order, the same has been included, which is also untenable. 6. The learned Government Advocate (Taxes) appearing for the first respondent would submit that after the order passed by the https://hcservices.ecourts.gov.in/hcservices/ appellate authority, the respondent was issued a notice dated 06.01.2006 to produce materials and records on or before 30.01.2006 and the notice was returned with the endorsement, no such addressee and hence it was served by affixure in the place of the business on 01.02.2006 and since, the dealer did not response to the notice, the impugned order of assessment was passed, confirming the original order of assessment. Therefore, the learned Government Advocate appearing for the first respondent would submit that there is no error in the impugned order . 7. I have carefully considered the submissions on either side and perused the materials available on record. 8. At the out set, it is to be pointed out that after the appellate authority passed the order dated 28.11.2005, setting aside the order of assessment dated 28.02.1997, the question of confirming the said order, once again does not arise. On remand the first respondent is expected redo the exercise afresh and come to an independent conclusion. Hence, the observation in the impugned order that the original order is confirmed, cannot be countenanced. 9. Rule 52 (1) of the TNGST Rule 1959 provides for service of notice and clause (a) of the Rule states that the notice should be served by giving or tendering it to the dealer or his authorized representative and clause (b) contemplates issue of notice to the residential address and clause (c) is to the effect that if the address of the dealer is known to the assessee, the notice should be sent by registered post and such notice should be sent to the residential address and without resorting to such procedure, the respondents cannot resort to the procedure of affixer. Thus, it is seen that there is violation of Rule 52(1) of the Rules. Further, it is to be noted that it is the specific case of the petitioner that they are in possession of all the documents in support of their contentions and these records were not available at the time of the original assessment and were produced before the appellate authority and since the appellate authority was of the opinion that the genuineness and correctness of those records cannot be verified at the appellate stage, set aside the order of assessment dated 28.02.1997 and remanded the matter to the first respondent to enable the petitioner to produce the records. Therefore, the reason assigned by the first respondent for passing the impugned order of assessment is not sustainable. It is therefore held that the assessee did not have due notice as contemplated under Rule 52 (1) of the Rules. 10. In the result, the writ petition is allowed and the impugned order is set aside and the first respondent is directed to issue a notice, fixing the time and date for the petitioner to produce the records. On the appointed date, the petitioner shall https://hcservices.ecourts.gov.in/hcservices/ produce the records and thereafter the first respondent after affording an opportunity to the petitioner shall pass orders on merits and in accordance with law. Consequently, connected miscellaneous petitions are closed. No costs. pbn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Deputy Commercial Tax Officer, Kongunagar Assessment Circle, Tirupur. 2.The Branch Manager, Bank of India, Tiruppur. + 1 cc to Mr. R. Senniappan, Advocate SR No.47519 + 1 cc to Mr. K.S. Duraipandi, Advocate SR No.49266 + 1 cc to Spl Government Pleader (T), SR No.49376 VSV(CO) SR/16.7.2010 Order in W.P.No.7850 of 2008 https://hcservices.ecourts.gov.in/hcservices/