IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.12.2010 CORAM THE HON'BLE MR. JUSTICE M.M.SUNDRESH W.P.No.23873 of 2010 and M.P.No.1 of 2010 M/s. Joy Alukkas Traders (India) Pvt. Ltd., rep. by its Director Joseph Christo 911, Cross Cut Road Gandhipuram, Coimbatore- 12. ... Petitioner Vs. 1.The Joint Commissioner (CT) Coimbatore Division 18, Balasundaram Road Coimbatore – 18. 2.The Assistant Commissioner (CT) Gandhipuram Assessment Circle 18, Balasundaram Road Coimbatore – 18. ... Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus to call for the records on the files of the first respondent in R.P.No.10 of 2010 dated 22.09.2010 and quash the same, as being contrary to the principle laid down by this Court in the judgment reported in 28 S.T.C. 551 in (Mahendrakumar Vs. Ishwarlal and Co. Vs. Deputy Commercial Tax Officer, Tirupattur), W.P.No.10781 to 10787 of 2008 dated 28.04.2008 in (Bio Veda Action Research Pvt., Ltd., Chennai- 28 Vs. Commercial Tax Officer, Adyar), and 143 S.T.C. 114 in (Nokia India Pvt., Ltd., Vs. Commercial Tax Officer, Chennai) and W.P.Nos. 15233 and 15234 of 2008 dated 27.06.2008 in ( M/s. Gagendra Corporation, Coimbatore Vs. Commercial Tax Officer) and further direct the second respondent to pass regular assessment order for the assessment year 2009-10, on the basis of the returns filed by the petitioner under the provisions of the Tamil Nadu Value Added Tax Act, 2006. For Petitioner : Mr.R.Senniappan For Respondents : Mr. Mahadevan Addl. Govt. Pleader ****** https://hcservices.ecourts.gov.in/hcservices/ O R D E R This Writ Petition has been filed by the petitioner, challenging the order impugned dated 22.09.2010, passed by the respondents in R.P.No.10 of 2010, on the only ground that inasmuch as the assessment year itself is over, the provisional assessment order passed by the Authority cannot be sustained, moreso, when the petitioner has filed a returns in the prescribed form. 2. The learned counsel appearing for the petitioner submitted that the order impugned has been passed on 22.09.2010, making the provisional assessment against the petitioner/assessee. The learned counsel further submitted that when the assessment year itself is over, for the year 2009- 10, on 31.03.2010, the order impugned passed provisionally assessing the petitioner cannot be sustained. In support of his contention, the learned counsel also relied upon the judgment reported in (1971) 28 S.T.C. 551 in the matter of (Mahendrakumar Vs. Ishwarlal and Co Vs. Deputy Commercial Tax Officer, Tirupattur), which was followed later in the judgments reported in (1990) 79 S.T.C. 421 in the matter of (State of Tamil Nadu Vs. Wander Ltd., ) and (2006) 143 S.T.C. 114 in the matter of (Nokia India Pvt., Ltd., Vs. Commercial Tax Officer, Chennai). 3. The position of law submitted by the learned counsel appearing for the petitioner has not been disputed by the learned Additional Government Pleader appearing for the respondents. The learned Government Pleader submitted that in the event of impugned orders passed by the respondents is being set aside by this Court, an opportunity may be given to the respondents to pass final assessment orders. 4. In the judgment reported in (1971) 28 S.T.C. 551 (supra), while dealing with the provisions of Tamil Nadu General Sales Tax Act, 1959, this Court was pleased to hold as follows:- " This is a case in which I should straight away agree with the learned counsel for the petitioner. As to what prompted the respondent to solicitously write his memo., which he called a notice, after the year of assessment was over and when he was seized with the A- 1 Form return filed by the petitioner voluntarily, I am not able to conjecture. There was no necessity for the officer to write this to the assessee at all. Having done so, the occasion for provisional assessment does not arise, because he had a return before him and he was obliged in law to assess on that return after accepting it or rejecting it. He cannot assess provisional once the year is over and once when https://hcservices.ecourts.gov.in/hcservices/ the return in the prescribed form is before him for purposes of processing through the assessment. Surprisingly enough he threatens penalty for submitting an untrue return when a return is already there in his file and which contain material on which he should act and decide as an assessing authority. If the materials before him and the return filed by the assessee are not acceptable for any other reason, he can act in any manner known to law including the levy of penalty as provided under the Act. But the respondent has no jurisdiction to say that he would provisionally assess in the circumstances of the case and threaten the assessee with penalty for having wilfully submitted an untrue return. It is in this view of the matter, the rule nisi is made absolute and the writ petition is allowed. The assessing authority is at liberty to proceed with the assessment on the basis of the return filed by the petitioner and deal with it in accordance with law " Similarly, while dealing with the very same provisions, under the very same enactment, which is also the subject matter of the present writ petition, this Court, in W.P.Nos.10781 to 10787 of 2008 dated 28.04.2008 in the matter of (Bio Veda Action Research Pvt., Ltd., Chennai- 28 Vs. Commercial Tax Officer, Adyar) has held as follows:- " By consent of counsel for both sides, the below mentioned consent order is passed Already, the assessment year is over, hence, the provisional assessment order passed by the respondent, which are impugned in these Writ Petitions are set aside. The respondent is directed to pass final orders in the case of the petitioners on merits and in accordance with law, within a period of two weeks from the date of receipt of a copy of this order" Very recently, this Court vide order dated 27.06.2008, passed in W.P.Nos. 15233 and 15234 of 2008 in the matter of ( M/s. Gagendra Corporation, Coimbatore Vs. Commercial Tax Officer) has held as follows:- " As the assessment year is over, already the provisional assessment order passed by the respondent, which are impugned in these which are impugned in these Writ Petitions are set aside. The second respondent is directed to pass final orders in the case of the petitioners on merits and in accordance with law, within a period of two weeks from the date of receipt of a copy of this order" https://hcservices.ecourts.gov.in/hcservices/ 5. It is not in dispute that the orders passed on the earlier occasions by this Court have become final. Considering the fact that the assessment year is already over, the provisional assessment orders passed by the respondents are hereby set aside. Consequently, the respondents are directed to pass final orders of assessment in the case of the petitioner on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order. The petitioner is also at liberty to place all the materials before the Assessing Officer , which has been raised in the present Writ Petition. 6. Therefore, the Writ Petition is disposed of in the above said terms. Consequently, connected Miscellaneous Petition is closed. However, there shall be no orders as to costs. sd Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To 1)The Joint Commissioner (CT) Coimbatore Division 18, Balasundaram Road Coimbatore – 18. 2)The Assistant Commissioner (CT) Gandhipuram Assessment Circle 18, Balasundaram Road Coimbatore – 18. + 1 cc to Mr. R. Senniappan, Advocate SR No.88487 + 1 cc to Spl Government Pleader (T), SR No.87467 NSM(CO) SR/10.12.2010 W.P.No.23873 of 2010 https://hcservices.ecourts.gov.in/hcservices/