Whether a request by the appellant for his matter of issue to be dealt by some other officer would be accepted or not?

PJ/Case Law/2018-2019/3459

Case:AROKIYA FOODS
Citation:2018 (13) G.S.T.L. 142 (Mad.)
Issue: Whether a request by the appellant for his matter of issue to be dealt by some other officer would be accepted or not?
Brief facts:The petitioner is a registered dealer on the file of the 3rdrespondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act). The petitioner is aggrieved by an order passed by the 2nd respondent dated 4-4-2017 based on a representation given by the petitioner with regard to levy of tax and penalty on the sale of idli and dosai maavu (batter) for the assessment years 2009-2010 to 2016-2017. The petitioner requested for waiver of the amount which has been demanded.
Appellant’s contention: The petitioner’s contention is that earlier the petitioner had approached the authority for clarification and advance ruling, who had clarified vide order dated 30-12-2016 which is a Review Order stating as follows :
Idly Wet Maavu (Battar), Doasai Wet Maavu (Batter), Addai Wet Maavu (Batter) sold without brand name are liable to tax at 5% under Entry 51 of Part B of the First Schedule to the TNVAT Act, 2006. The clarification issued already in ACAAR No. 11/2013-14 (Acts Cell-II/13137/ 2013) is reiterated.
(However, branded - Idly Wet Maavu (Batter), Dosai Wet Maavu (Batter), Addai Wet Maavu (Batter) are taxable at 12.5% for the period from 1-4-2008 to 31-3-2010 and at the reduced rate of 4% between the period from 1-4-2010 and 11-7-2011 as per Notn. No. II(l)/CTR/ 4(b-1)/2010 published in G.O. Ms. No. 33 CT & R(B2), dated 29-3-2010; and at the rate of 5% from 12-7-2011 onwards as per Notn. No. II(1)/CTR/12(R-29)/2011 published in G.O. Ms. No. 78 CT & R(B2), dated 11-7-2011.”
The petitioner did not challenge the order passed by the Advance Ruling Authority but thought fit to approach the Government for seeking waiver. However the appellant clarifies that this application has been rejected by the 2ndrespondent.The Learned Counsel for the petitioner submitted that since the 2nd respondent was party to the decision passed by the advance ruling authority, the matter should have been dealt with by some other officer of equivalent cadre, since the 2nd respondent has rendered certain finding with regard to the clarification of the goods. Strictly speaking, there will not be any conflict of interest nor the principle that ‘No one can be a Judge of his own cause’ would apply, but however, to ensure that there is fairness in approach and to ensure that justice is done to the parties, it would have been better if the file had been assigned to some other officer of equivalent cadre as that of the 2nd respondent, who can take a decision on the application for waiver on merits and in accordance with law.
Respondent’s Contention and reasoning of Judgement:
TheCourt passed the following interim order:
It has submitted by the Learned Counsel for the petitioner that the petitioner applied for a clarification before the authority for clarification and advance ruling and an order came to be passed on 30-12-2016, in which the Commissioner of Commercial Taxes is also a party to the decision. Subsequently, the petitioner submitted a waiver proposal dated 23-1-2017 to the Secretary to Government, Commercial Taxes and Registration Department and the same has been returned to the petitioner by the Commissioner of Commercial Taxes vide impugned proceedings dated 4-4-2017. It is further submitted that the Commissioner of Commercial Taxes is also the Secretary to Government, Commercial Taxes and Registration Department and the application should be dealt with by the Government and therefore, the Commissioner of Commercial Taxes should place the matter before the Government and the matter to be decided by a different Secretary as the present Commissioner was a party to the decision dated 30-12-2016.
Mr. K. Venkatesh, Learned Government Advocate accepts notice for the respondents and seeks time to get instructions in the matter.
Thus, considering the peculiar facts and circumstances of the case, without expressing anything on the manner in which the 2nd respondent has passed the impugned order and with a view to ensure that justice is not only done, but it should be seen to be done, the matter is directed to be placed before some other officer of equivalent cadre.
Decision: The Writ Petition is allowed and the impugned order is set aside with a direction to the 1strespondent to place the files before some other officer of equivalent cadre so that a decision can be taken on the application filed by the petitioner for waiver. An opportunity of personal hearing shall be granted to the authorized representative of the petitioner before a decision is taken on the application. Pending disposal of the writ petition, the petitioner had the benefit of an interim order. The said order shall continue till the above direction is complied with and no coercive action shall be initiated against the petitioner. The above direction shall be complied with as expeditiously as possible preferably within a period of three weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
Comment: The gist of this case is that the request by the appellant for his matter of issue to be dealt with by some other officer would be accepted because of the obvious reasons stated in the Study.
Prepared by: Adit Gupta

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PJ/Case Law/2018-2019/3459

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