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M/s. Sundaram Spinning Mills Versus The Assistant Commissioner (CT) , The Joint Commissioner (CT)

Validity of order - gross procedural violation of the procedure - Held that:- Admittedly, the impugned orders have been passed in violation of the procedure contemplated under the Act, which has been set out in the order, referred supra. The procedural error goes to the root of the matter, thereby vitiating the impugned proceedings. One other factor which has to be taken note of is that the designated authority accepted the case of the petitioner for the years 1992-93, 1995-1996 and 1996-97 and .....

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terference. - Matter remanded back. - W.P.Nos.23818 to 23820 of 2015, M.P.Nos.1 to 1; 2 to 2 & 3 to 3 of 2015 - Dated:- 14-6-2016 - T. S. Sivagnanam, J. For Petitioner : Mr.S.Rajasekar For Respondents : Mr.Manokaran Sundaram ORDER Heard Mr.S.Rajasekar, learned Counsel appearing for the petitioner and Mr.Manokaran Sundaram, learned Additional Government Pleader appearing on behalf of the respondents and with the consent of learned counsel appearing on either side, these writ petitions are tak .....

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rears] Act, 2011(Act No. 29/2011) 3.After elaborately hearing the learned counsel for the petitioner and carefully perusing the materials placed on record, it is evidently clear that the impugned orders have been passed in gross procedural violation of the procedure contemplated under Act 29 of 2011. In fact, I had considered the scope of the proceedings under the said Act in a batch of cases before the Madurai Bench of this Court in the case of M/S CHERAN CEMENTS LTD., REP. BY ITS DIRECTOR P. K .....

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aspects raised in these writ petitions, it would be necessary to examine the manner in which the Settlement Act operates. The Act provides for settlement of arrears of tax, penalty or interest pertaining to sales tax and the matter connected therewith or incidental thereto. The Act came into force on 26.09.2011. Section 2(1)(a) defines 'applicant' to mean the dealer as defined in the relevant Act. The 'relevant Act' has been defined under Section 2(1)(e) to mean the repealed Tam .....

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s been made prior to 01.08.2011 under the relevant Act and pending collection on the date of filing of application under the Settlement Act. 20. It is not in dispute that the first respondent is the designated authority under the provisions of the Act and appointed by the Government under Section 3. The persons, who are eligible for settlement under the Act has to fulfill the conditions under Section 4 and in this case it is not in dispute that the petitioner was entitled to avail the provisions .....

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Government may, by notification, specify, from time to time, in such form, and in such manner, as may be prescribed, with proof of payment of the amount payable at the rates specified in section 7. (2) A separate application shall be made for each assessment year. (3) The applicant shall send a copy of the application made under sub-section (1) to the assessing authority, appellate authority or revisional authority under the relevant Act, before whom any proceeding or appeal or revision, as the .....

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rm prescribed, if the amount paid by the applicant along with application falls short of not more than ten per cent of the amount determined under sub-section (1). (3) If the applicant has not paid ninety per cent of the amount payable under section 7 along with the application, the designated authority shall summarily reject the application. (4) The amount determined under sub-section (1) shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rup .....

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nt of arrears of tax pending collection on the date of application along with interest calculated at seven and a half per cent per annum thereon and on such payment of tax, the balance of tax and interest and the entire penalty shall be waived. (b) Where it relates to arrears of tax, including any arrears of tax accrued due to non-filing of declaration forms which was in excess of the tax admitted as per the returns filed for the year with the corresponding arrears of penalty and interest, the a .....

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with interest at seven and a half per cent. per annum and on such payment, the balance of interest and the entire penalty shall be waived. (d) Where it relates to arrears of penalty or interest or both and where there is no corresponding arrears of tax pending collection on the date of application, the applicant shall pay ten per cent of the penalty and twenty five per cent of interest, the balance of penalty and interest shall be waived. 21. In terms of the above provisions, the applications s .....

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e returns filed for the year with corresponding arrears of penalty and interest and Clause (d) relates to arrears of penalty or interest or both and where there is no corresponding arrears of tax pending collection on the date of application, the amount which the applicant has to pay under each of the clauses have been mentioned. 22. Therefore, the applicant, while submitting application under Section 5 has to calculate the amount payable as per the rates mentioned in Section 7(a) to (d) and rem .....

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e, which at the first instance is on the dealer/applicant. In terms of Section 6(1), the designated authority is bound to verify the correctness of the particulars furnished in the application made under Section 5 with reference to all relevant records and determine the amount payable at the rate specified in Section 7. 23. Therefore, at that stage the designated authority has to verify as to whether the rates as calculated by the petitioner while submitting application under Section 7 was corre .....

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applicant failed to fulfill the conditions under sub-section (2) of Section 6, his application stands summarily rejected in terms of sub-section (3) of Section 6. Thus, the Act being a Settlement Act to give reprieve to the dealer/applicant and bring him out of the misery has first thrown the onus on the dealer/applicant and he has a statutory duty to compute the rate applicable in accordance with Section 7 of the Act, by considering all the relevant records. If the dealer/applicant properly co .....

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n the dealer to carefully peruse all his records and relevant documents while determining the rate payable by him, but also on the assessing officer while verifying the application as to the correctness of the particulars furnished exercising power, under Section 6(1) by taking into consideration relevant records and then determine the amount payable at the rates specified in Section 7. It is a settled legal principle that any Settlement Act or amnesty scheme have to be strictly interpreted and .....

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d, and thereupon the applicant shall be discharged from his liability or interest. In terms of sub-section (2) to Section 8, the designated authority, for reasons, to be recorded in writing, may refuse to settle the arrears of tax, penalty or interest and such orders shall be passed after giving reasonable opportunity to the applicant to show-cause against such refusal. In terms of sub-section (3) to Section 8, the authority notified by the Government may, at any time, within ninety days from th .....

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ars of tax, penalty or interest by recording reasons in writing after issuing show-cause notice. 4. Admittedly, the impugned orders have been passed in violation of the procedure contemplated under the Act, which has been set out in the order, referred supra. The procedural error goes to the root of the matter, thereby vitiating the impugned proceedings. One other factor which has to be taken note of is that the designated authority accepted the case of the petitioner for the years 1992-93, 1995 .....

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