TMI Blog1988 (1) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... was assessed by the first respondent, the Deputy Commercial Tax Officer, Tiruchengode. The method adopted for the assessment was as contemplated by sub-rules (2) to (7) of rule 18 of the Tamil Nadu General Sales Tax Rules (hereinafter referred to as "the Rules"). The petitioner was enjoying the facility of filing A-2 returns and paying tax on monthly turnover basis as per the said rules. The petitioner was complying with the conditions stipulated by the said rules scrupulously till the assessment year 1976-77. Due to recession in the textile mill industry and due to labour unrest during the assessment year 1976-77, the petitioner-mill was unable to pay the tax for some months within the time stipulated as per sub-rule (2) of rule 18. When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the revision stating that section 24(3) was mandatory and hence no interference was called for with the assessment and imposition of penalty. A further revision to the third respondent also was dismissed by the third respondent observing that the payment of penalty under section 24(3) was mandatory and further, the question of preferring a revision did not arise. The order of the third respondent confirming the orders of the second and the first respondents were illegal according to the petitioner and are also untenable constituting errors on the face of the record, and failure to discharge the statutory obligation under the Act. 2.. Mr. V. Srinivasan, learned counsel for the petitioner, contended that the order imposing penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner of Commercial Taxes [1985] 59 STC 52 (Mad.) is relied on by the learned counsel for the petitioner for the proposition that rule 18(3) of the Rules, along with the monthly returns, is really in the nature of self-assessment and if the liability to pay interest by way of penalty is fastened only in a case where the tax assessed is not paid within the time specified therefor in the notice of assessment, there will be no question of any notice of assessment in a case which is governed by rule 18(3) of the Rules and the provisions of section 24(3) of the Act cannot be attracted to such a case. This decision is also relied on for the proposition that section 24(3) being a provision which creates a fiscal liability, must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is submitted that there are absolutely no merits in the allegations of the petitioner in paragraphs 16 to 18 of the affidavit. As already submitted in the foregoing paragraphs, there is no option for any one for the levy of penalty under section 24(3). The action of the respondents is therefore legal and valid."-(sic). 5.. The points that arise for determination in the writ petition are: (1) Whether the contention raised on behalf of the Revenue that a revision lies to the Deputy Commissioner under section 33 and as such, the writ petition is not maintainable, is to be upheld or not? (2) Whether the contention raised on behalf of the petitioner that the writ petition is maintainable and the point raised, viz., that in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctly stated as one of the contentions of the Revenue had not been complied with. Therefore, when it is common ground that no enquiry had been conducted as per rule 18(4) of the Rules, necessarily the order that had emanated without such an enquiry being held, is certainly not in accordance with law and as such had necessarily to be quashed. Therefore, the order sought to be quashed is hereby quashed. The writ petition is allowed. The amount paid by way of penalty, viz., Rs. 9,926, is directed to be refunded to the petitioner herein, since the procedure to be followed had not been followed and since it is the basic principle of procedural law that an opportunity as per the provisions has necessarily to be given to the aggrieved person a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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