9911796707
TMI Blog2011 (1) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... ges before this court that the order passed by the first respondent in Ref. M2/53216/96 SMR. No. 628/97 dated October 21, 2004 is a non est and unsustainable one in the eye of law. It is the contention of the learned counsel for the petitioner that the order of the second respondent/Appellate Assistant Commissioner (CT), Trichy has been passed on May 30, 1996, whereas the order of the first respondent has been passed on October 21, 2004 and indeed, section 34 of the Tamil Nadu General Sales Tax Act, 1959 envisages suo motu powers to be exercised by the first respondent/Joint Commissioner III (SMR), Commercial Taxes, Chennai 5 as per section 34(2)(c) of the Tamil Nadu General Sales Tax Act, 1959. Advancing his argument, it is the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars, the first respondent has no jurisdiction to commence proceedings from the date of the order of the second respondent/Appellate Assistant Commissioner (CT), Trichy. Also, it is contended on behalf of the petitioner that showcause proceeding has commenced on November 18, 1997 and that the impugned order of the first respondent has been passed on October 21, 2004. After lapse of seven years, after keeping the matter pending such a long period, the concerned authority has passed the impugned order which seriously prejudices the case of the petitioner and consequently, the impugned order of the first respondent dated October 21, 2004 is vitiated and non-est in the eye of law. Per contra, it is the contention of the learned Government Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before the second respondent and in appeal, equal time addition has been deleted. But on revision, the first respondent while, reviewing the order of the second respondent, as per section 34 of the Tamil Nadu General Sales Tax Act, 1959, has set aside the order and restored the order of the third respondent. The core contention of the respondents is that there is no violation of section 34(2)(c) of the Tamil Nadu General Sales Tax Act, 1959. When the first respondent has issued show-cause notice, it has been pointed out that "excess and deficit stocks have been noticed at the time of inspection of place of business which reveals purchase omissions and that stock variation has been arrived at by taking quantitative details and not by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion, call for and examine an order passed or proceeding recorded by the appropriate authority under section 4A, section 12, section 12A, section 14, section 15 or sub-section (1) or (2) of section 16 or an order passed by the Deputy Commissioner under sub-section (1) of section 32 or sub-section (3) of section 33 and if such order or proceeding recorded is prejudicial to the interests of revenue, may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order thereon as he thinks fit. (2) The Joint Commissioner of Commercial Taxes shall not initiate proceedings against any such order or proceeding r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is court is of the considered view that admittedly, the show-cause notice has been issued to the petitioner on November 18, 1997, which is within five years from the date of the order of the second respondent/Appellate Assistant Commissioner (CT), Trichy dated May 30, 1996 and as such, it is candidly clear that there is no infraction of section 34(2)(c) of the Tamil Nadu General Sales Tax Act, 1959. Apart from the above, this court pertinently quotes the relevant order of the first respondent dated October 21, 2004 which runs hereunder: "1. During the time of inspection, excess and deficit stocks have been noticed in various different commodities. This shows that the appellants were involved in both purchases and sales suppression. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mble portion of the impugned order of the first respondent dated October 21, 2004, the date of hearing is clearly specified as September 29, 2004 and the date of order is also mentioned as October 21, 2004. Be that as it may, the ingredients of section 34(2)(c) of the Tamil Nadu General Sales Tax Act, 1959 confers powers to the first respondent/Joint Commissioner (III SMR), Commercial Tax, Chennai-5, to initiate proceedings in revising, modifying or setting aside the order or proceeding mentioned in section 34(1) of the Tamil Nadu General Sales Tax Act, 1959 and he is at liberty to pass such order as he thinks fit and proper and this special power has been vested to the first respondent as per section 34(1) of the Tamil Nadu General Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X
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