IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition Nos.7515, 7516 and 7517 of 2011 M/S.CALPANA SERVICE STATION REP. BY ITS PROPRIETOR K.DEIVANAYAGAM RS.NO.145/5, VILLIANUR ROAD KURUMBAPET REVENUE VILLAGE SULTHANPET, PUDUCHERRY-605 004. [ PETITIONER IN ALL THE WRIT PETITIONS) Vs 1 THE DEPUTY COMMERCIAL TAX OFFICER-I PUDUCHERRY. 2 THE APPELLATE ASSISTANT COMMISSIONER (CT) CT COMPLEX, 100 FT. ROAD, PUDUCHERRY. [ RESPONDENTS IN ALL THE WRIT PETITIONS) W.P.No.7515 of 2011: Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorari calling for the records of the 1st respondent in PGST 106110/2004-05 dated 8.10.2007 and quash the same. W.P.No.7516 of 2011: Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorari calling for the records of the 1st respondent in PGST 106110/2005-06 dated 16.10.2007 and the consequential proceedings in PGST 106110/2005-06 dated 9.1.2008 and quash the same. W.P.No.7517 of 2011: Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorari calling for the records of the 1st respondent in PGST 106110/2006-07 dated 13.5.2008 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mrs.Hema Muralikrishnan in all the writ petitions For respondents : Mr.T.P.Manoharan in all the writ Special Government Pleader petitions (Pondicherry) C O M M O N O R D E R The writ petition, in W.P.No.7515 of 2011, has been filed praying for a writ of Certiorari to call for and quash the proceedings of the first respondent, in PGST 106110/2004-05, dated 8.10.2007. 2. The writ petition, in W.P.No.7516 of 2011, has been filed praying for a writ of Certiorari to quash the proceedings of the first respondent, in PGST 106110/2005-06, dated 16.10.2007, and the consequential proceedings, in PGST 106110/2005-06, dated 9.1.2008. 3. The writ petition, in W.P.No.7517 of 2011, has been filed praying for a writ of Certiorari to quash the proceedings of the first respondent, in PGST 106110/2006-07, dated 13.5.2008. 4. Since, the issues involved in all the writ petitions are similar in nature, they have been heard together and a common order is being passed. 5. The above writ petitions have been filed by the petitioner, M/s.Calpana Service Station, Sulthanpet, Puducherry, challenging the orders passed by the first respondent, for the assessment years 2004- 05, 2005-06 and 2006-07. 6. It has been stated that the petitioner is dealing in Petroleum products, pursuant to the dealership granted by the Indian Oil Corporation. The lubricants are purchased by the petitioner and they are sold to customers. The petitioner has been assessed to tax and it had been paying the reported/admitted taxes, regularly. The petitioner had filed appeals against the assessment orders passed by the first respondent, for the above said assessment years. However, the appeals have not been taken up for hearing, till date. 7. It has been further stated that, in the meanwhile, the registering officer of the respondent Department had cancelled the registration of the petitioner. However, this Court had granted an order of interim stay of the impugned order of cancellation of registration, by an order, dated 24.2.2010, in M.P.No.1 of 2010, in W.P.No.3904 of 2010. Thereafter, the interim order granted by this Court, on 24.2.2010, had been further extended. While so, the https://hcservices.ecourts.gov.in/hcservices/ petitioner had submitted an application for renewal of the registration, along with the necessary fee for such renewal. Based on the application filed by the petitioner, the respondents had renewed the registration of the petitioner in the month of June, 2010, thereby, impliedly revoking the cancellation of the registration of the petitioner. Thereafter, the petitioner had been granted renewal of the registration, for the year 2010-2011, on 27.6.2010, by the Deputy Commercial Tax Officer, Puducherry. Based on the said fact, this Court had dismissed the writ petition, in W.P.No.3904 of 2010, as infructuous. Subsequently, the petitioner had filed another writ petition before this Court, in W.P.No.20000 of 2010, challenging the proceedings of the registering officer, restoring the cancellation of the registration, improperly. This Court had granted an interim order of stay of the said proceedings. The petitioner had filed a writ petition, in W.P.No.23018 of 2010, for the issuance of C Forms and the said writ petition is still pending on the file of this Court. 8. It has also been stated that the appeals filed by the petitioner, against the assessment orders passed by the first respondent, had not been taken up for hearing, till date. The respondent Department had stated that the appeals had not been filed properly and therefore, they had not been heard and disposed of, as per law. 9. It has been further stated that the impugned orders of assessment passed by the first respondent are against law and contrary to the facts and circumstances of the case. It has been further stated that the first respondent had failed to consider the fact that the petitioner was liable to pay the tax only in respect of the goods, which had been sold. Further, the petitioner could have sold only the products and the specific quantity, which had been supplied to the petitioner. Therefore, the respondents ought to have accepted the return and should have allowed the claim of the petitioner. The first respondent had relied on certain documents for passing the impugned orders, without giving an opportunity of hearing to the petitioner. Hence, the impugned orders passed by the first respondent are contrary to the relevant provisions of law, as well as the principles of natural justice. 10. It has also been stated that the lubricants in question had been purchased by the petitioner and sold to its customers, only as a second sale. As such, the petitioner is eligible for exemption of tax. Even if the sale is treated as a first sale, it is only the Indian Oil Corporation, which would be liable for the payment of the applicable tax, if any. 11. It has also been stated that the assessment orders had been passed by the first respondent only based on the statements and records obtained from the Oil Company. Copies of all the statements https://hcservices.ecourts.gov.in/hcservices/ and records had not been furnished to the petitioner before the impugned orders had been passed. Further, the impugned orders had been passed without verification and cross checking of the records with the list of C forms, which were available on the records of the first respondents. In such circumstances, the impugned orders of the first respondent are liable to be set aside. 12. On behalf of the respondents, it has been stated that the pre-assessment notice had been sent to the petitioner, along with the necessary documents. In fact, the documents relied on by the first respondent, for the passing of the impugned orders, are the petitioner’s own documents. Therefore, the petitioner had sought for further time to file its objections. The petitioner had also been given further time, as requested by the petitioner. Since, sufficient opportunity had been given to the petitioner and as the first respondent had not relied on any other document, other than those, which had already been given to the petitioner, the claim of the petitioner that the impugned orders had been passed by the first respondent, without following the principles of natural justice, cannot be accepted. 13. It had been further stated that it is open to the petitioner to challenge the impugned orders, by way of filing an appeal against the said orders, under Section 32 of the Tamil Nadu General Sales Tax Act, 1959. 14. It had also been stated that the officer, who had passed the impugned orders had the power and the jurisdiction to do so. Therefore, it is not open to the petitioner to state that the first respondent had no authority or jurisdiction to pass the impugned orders. As sufficient opportunity had been given to the petitioner to putforth its case, the claim of the petitioner that the impugned orders are contrary to the principles of natural justice is not sustainable. Further, the petitioner, having claimed that the appeals had been filed before the appellate authority, challenging the impugned assessment orders, it is not open to the petitioner to invoke the writ jurisdiction of this Court, by way of filing the above writ petitions, under Article 226 of the Constitution of India. Further, it is clear, from a perusal of the records, that the appeals, said to have been filed by the petitioner, are fabricated documents. The office seals affixed on the appeal papers, said to have been filed by the petitioner, would clearly show that the documents are fabricated. Seals affixed on the appeal papers are not the seals, which were being used by the office of the appellate authority during the relevant point of time. Therefore, the claim made by the petitioner, in the present writ petitions, cannot be sustained in the eye of law. 15. The learned counsel appearing on behalf of the petitioner had submitted that the impugned assessment orders passed by the https://hcservices.ecourts.gov.in/hcservices/ first respondent could be set aside merely for the reason that the first respondent had not followed the principles of natural justice before passing the said orders. Even though the first respondent had relied on a number of documents and statements obtained from the Oil Company, the petitioner had not been given an opportunity to cross check or cross examine the records of the Oil Company, regarding the authenticity of the said documents. Even though the petitioner had filed the necessary appeals before the appellate authority, the respondent Department had been stating erroneously, that the appeal papers filed in the office of the appellate authority are fabricated in nature. 16. He had also submitted that the validity of the copies of the 'C' forms relied on by the first respondent, for the passing of the impugned orders, had not been tested. The assessment orders had been passed only on the statements and records obtained from the Oil Companies. Even though sufficient powers are available with the officer concerned to summon the oil companies, which had supplied the Petroleum products to the petitioner, and to seize and examine the necessary records, the first respondent had passed the impugned orders, without proper consideration of the documents in question. 17. He had further submitted that there was no need for the petitioner to fabricate the papers filed along with the appeals, as there is no time limit stipulated by law, for the filing of the such appeals. Further, the availability of an alternative remedy is not a bar for this Court to set aside the impugned orders, especially, when principles of natural justice had been infringed. As per Section 13 of the Pondicherry General Sales Tax Act, 1959, the petitioner ought to have provided a reasonable opportunity of being heard, before the first respondent had passed the impugned orders. It is not open to the respondent Department to state that the request of the petitioner for further time, for filing the objections, had been allowed, orally, when no such provision is available in the Act or in the Rules framed thereunder. In fact, only the ledger extract of the Oil Companies had been produced. Even though the invoice numbers had been given, copies of the invoices had not been furnished to the petitioner. Therefore, there is a clear violation of the principles of natural justice in the passing of the impugned orders, by the first respondent. The statement made on behalf of the respondent Department that all the documents relied on by the first respondent, for the passing of the impugned orders, had been furnished to the petitioner is incorrect. 18. The learned counsel appearing on behalf of the petitioner had submitted that it would suffice if the impugned assessment orders passed by the first respondent are set aside and the matters are remitted back to the assessing officer, for passing appropriate https://hcservices.ecourts.gov.in/hcservices/ orders, after furnishing all the statements and records relied on by the assessing officer and after giving an opportunity of hearing to the petitioner. 19. In view of the submissions made on behalf of the petitioner, as well as the respondents, and on a perusal of the records available, this Court is of the considered view that the first respondent had passed the assessment orders, without giving sufficient opportunity to the petitioner to cross check the records and the statements obtained from the Oil Company. Therefore, the impugned assessment orders are liable to be set aside. Further, the contentions raised on behalf of the respondent Department that the petitioner ought to have availed the alternative remedy of appeal, before the concerned appellate authority, challenging the impugned orders passed by the first respondent cannot be countenanced, especially, in view of the stand taken by the respondent Department that the appeal papers filed by the petitioner are fabricated in nature. Even though it would be open to the respondent Department to examine the issue relating to the fabrication of the appeal papers, by the petitioner, by way of an independent investigation, it would not stand in the way of this Court setting aside the impugned assessment orders and to remit the matters back to the assessing officer, for passing fresh assessment orders, after giving a reasonable opportunity of hearing to the petitioner. Even though it has been stated on behalf of the respondent Department that the petitioner had been given sufficient opportunity to raise its objections, after perusing the statements and records obtained from the concerned oil company, no proof has been shown on behalf of the respondent Department to substantiate such a claim. It has only been stated that, even though further time had been granted, orally, the petitioner had not availed the opportunity to raise its objections and to appear for a personal hearing. 20. In such circumstances, even though various contentions have been raised on behalf of the petitioner, as well as the respondent Department, and a number of decisions had been cited in support of such contentions, this Court, finds it appropriate, without going into the merits of the matters, to set aside the impugned orders and to remit the matters back to the assessing officer, to pass appropriate orders, on merits and in accordance with law, after furnishing to the petitioner, the copies of the supply vouchers relied on by the respondent Department and after giving a reasonable opportunity of hearing to the petitioner, within a period of one month from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 21. The writ petitions are ordered accordingly. No costs. Connected M.P.Nos.1 and 2 of 2011 are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar lan To: 1 THE DEPUTY COMMERCIAL TAX OFFICER-1 PUDUCHERRY. 2 THE APPELLATE ASSISTANT COMMISSIONER (CT) CT COMPLEX, 100 FT. ROAD, PUDUCHERRY. 3 cc to M/s.Hema Muralikrishnan, Advocate, Sr.No.68737 1 cc to Spl.Government Pleader, Sr.No.68778 Writ Petition Nos.7515, 7516 and 7517 of 2011 SAI {CO} TP/15.11.2011. https://hcservices.ecourts.gov.in/hcservices/