TMI Blog2016 (9) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... ds for the purpose of verifying the correctness of the particulars furnished by the petitioner in the application made under Section 5 of the Settlement Act and the computation made by the petitioner under Section 7 of the Act. The respondent shall pass final orders, on merits and in accordance with law, within a period of three months - petition allowed - decided in favor of petitioner. - WP. No. 34448 of 2015 & MP. No. 1 of 2015, WP. No. 34449 of 2015 & MP. No. 1 of 2015 - - - Dated:- 8-9-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. M. Mahalingam For the Respondents : Mr. K. Venkatesh, GA ORDER Heard Mr.M.Mahalingam, learned counsel appearing for the petitioner; Mr.K.Venkatesh, learned Government Advocate appearing for the respondents and with the consent on either side, the writ petitions are taken up for disposal. 2. In both the Writ Petitions, the petitioner has challenged the order passed by the Joint Commissioner [CT], Vellore Division, who is the Designated Authority under the provisions of Tamil Nadu Sales Tax [Settlement of Arrears] Act [29 of 2011] [hereinafter referred to as the Act ] in RC C3/990/2012/2005-2006 and RC C3/2336/2012/ 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of section 4 shall be made to the designated authority by an applicant within six months from the date of commencement of this Act or by such later date as the 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 case may be, is pending, within seven days from the date of making such application before the designated authority. 6. Determination of amount payable by the applicant. - (1) The designated authority shall 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 rates specified in section 7. (2) The designated authority shall demand further amount payable by the applicant in the form p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of interest, the balance of penalty and interest shall be waived. 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 remit the same and file proof of payment along with application. A separate application is required to be filed for each assessment. If any application or revision is pending, then the applicant has to forward the copy of the application to the said authority in terms of Section 5(3). Therefore, at the first instance, the onus lies on the dealer/applicant to determine the payment payable under Section 7. We have noticed that under Section 7, it is a rate applicable for determining the amount payable, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of amount determined under Section 6(1), by an order, settle the arrears of tax, penalty or interest and issue a certificate in such form as may be prescribed, 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 the date of issuance of certificate under sub-section (1) of Section 8 by the designated authority, modify the certificate by rectifying any error apparent on the face of the record. Therefore, the applicant to be entitled to certificate under Section 8(1) has to first satisfy the designated authority about the payment of the amount determined under sub-section (1) to Section 6. Even if the applicant satisfies such requirements, still the designated authority has power to refuse to settle the arrears of tax, penalty or interest by recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well be thrashed out if the assessee is called upon by the designated authority to state as to how they computed the amount based on their books of accounts or records. Therefore, though the statute does not prohibit an opportunity of personal hearing while considering the application under Section 6(1), going by the scheme of the Act, there is no error on the part of the designated authority to afford an opportunity of personal hearing so as to ensure fairness and transparency in procedure and also to satisfy the cardinal rule, audi alteram partem. 7. Admittedly in the instant case, none of the above mentioned procedures have been followed and the impugned order suffers from very serious procedural defects and this is a good ground to interfere with the impugned order. 8. In the light of the above discussion, the writ petitions are allowed and the impugned orders in RC C3/990/2012/2005-2006 and RC C3/2336/2012/ 2006-2007 dated 30.03.2015 are set aside and the matter is remanded to the respondent for fresh consideration in terms of the provisions of the Settlement Act, after affording an opportunity of personal hearing to the petitioner to produce Books of Accounts and rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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