TMI Blog2011 (2) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Writ Petition (MD) No. 11717 of 2005 - - - Dated:- 2-2-2011 - VENUGOPAL M. J. M. Md. Ibrahim Ali for the petitioner D. Sasikumar, Government Advocate, for the respondent ORDER The petitioner has filed the present writ petition seeking the relief of writ of certiorari in calling for the records pertaining to the notice issued by the respondent i Ref. No. Va.Vi.No. 5881012/98-99 dated August 31, 2005. The petitioner is the father of Mr. Manikandamariappan being the owner of Sree Krishna Carbide. The said industry has been started in November 1988. It is the plea of the petitioner that high tension power is the main raw material for the carbide industry and because of the increase in power tariff for high tension, the petitioner has not been in a position to run the industry in a profitable manner. Therefore, the industry has been closed from January 15, 1999 to June 1999. Again, the factory has been closed from September 1999 to March 2002. According to the petitioner, sales tax accounts for the assessment period from April 1, 1998 to March 31, 1999 and for the period from April 1, 1999 to March 31, 2000 have been submitted before the respondent/Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner urges before this court that the petitioner has paid the entire arrears in six equal instalments as ordered by this court in W.P.(MD) No. 787 of 2004 by means of an order dated August 27, 2004 (S. Manikandamariappan v. Deputy Commercial Tax Officer, Ettayapuram, Tuticorin District) and when the court itself has permitted the petitioner to pay the due amount in six equal instalments, the claim of interest for the perpetrated delayed payment claimed by the respondent in the impugned notice dated August 31, 2005 of the respondent is clearly an illegal, invalid and unsustainable one in the eye of law. The other limb of the argument projected by the learned counsel for the petitioner is that the first writ petition filed by the petitioner in W.P.(MD) No. 1147 of 2003, challenging the notice issued by the respondent dated December 24, 2002, is pending before the principal seat of this court and when that being so, then, it is not open to the respondent to issue another notice for public auction of the property. At this stage, it is useful for this court to refer to the order passed by this court in W.P.(MD) No. 787 of 2004 dated August 27, 2004 between S. Manikandam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, would oppose the same, this court is of the considered view that the amount of peak hour charges to the extent of ₹ 1,12,384 can be permitted to be payable by the petitioner in two equal instalments, out of which the first equal instalment shall be paid on or before March 1, 2006. The second equal instalment shall be paid on or before April 1, 2006. Failure to comply will result in the entire amount due and respondents entitled to proceed to recover. He also seeks in aid of the order passed by this court in W.P.(MD) No. 254 of 2007 dated June 18, 2009 between Sivakasi Electrochemicals Ltd., rep. by its Chairman and Managing Director, Virudhunagar District and the Superintending Engineer, Virudhunagar Electricity Distribution Circle, Virudhunagar, wherein in paragraph Nos. 10 and 15 to 17, it is observed hereunder: 10. The learned counsel appearing for the petitioner further contended that the respondent has permitted to pay the electricity tax in 12 equal monthly instalments and therefore, they have accepted the payment in 12 instalments and hence, there is no belated payment and therefore, the respondent is not entitled to levy the surcharge on the belated paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable. Also, this court aptly points out the decision in Apollo Tubes Limited v. Additional Deputy Commercial Tax Officer, Ranipet reported in [1994] 93 STC 339 (Mad), at page 340, wherein this court has among other things observed that . . . in the absence of proof of payment of tax, it is open to the Department to recover the tax due in accordance with the provisions of the Act. Automatically, the provisions for payment of interest will also come into play, and the Department is entitled to recover interest as provided under section 24(3) of the Tamil Nadu General Sales Tax Act, 1959, etc. In Godrej Boyce Manufacturing Co. Ltd. v. Joint Commissioner of Commercial Taxes IV reported in [1995] 97 STC 44 (Mad), wherein it is laid down that liability to pay interest under section 24(3) is automatic and absolute from the date on which it becomes due, etc. As a matter of fact, levy of interest and belated payment/delayed payment of tax is a part of the machinery in tax law. Furthermore, the interest claimed from the petitioner can only be described as a compensatory one. A reading of section 24(3) of the Tamil Nadu General Sales Tax Act clearly points out that the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in a case where the court of law has permitted the petitioner to pay the tax liability due amount in instalments, then, the claim/levy of interest by the respondent as per demand notice dated August 31, 2005 for the period 1998-99 amounting to a sum of ₹ 1,41,882 is not warranted in view of the peculiar facts and circumstances of the present case which float on the surface. To put it differently, when this court has permitted the petitioner in W.P.(MD) No. 787 of 2004 to pay the tax liability amounts in instalments as per the final order dated August 27, 2004 (S. Manikandamariappan v. Deputy Commercial Tax Officer, Ettayapuram, Tuticorin District) by exercising its judicial discretion, then, the invocation of section 24(3) of the Act for levying of interest for the payment made in instalments as per the order of this court, is not a justifiable, valid and prudent one, in the considered opinion of this court. Hence, this court is perforced to interfere with the order passed by the respondent/Deputy Commercial Tax Officer, Ettayapuram, Tuticorin District, dated August 31, 2005 and since the same is not in order and a valid one in the eye of law, this court sets aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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