Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding


  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

2016 (10) TMI 123

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... essary facts and therefore, the Tribunal on misconstruing the facts, had passed the order as if the objections have not been submitted. Petition dismissed - delay not condoned - decided against petitioner. - W.P(MD)No.8167 of 2007 - - - Dated:- 27-9-2016 - MR.JUSTICE M.SATHYANARAYANAN AND MS.JUSTICE V.M.VELUMANI For the Petitioner : Ms.Lakshmi Sriram For the Respondent : Mr.R.Karthikeyan Additional Government Pleader for R.1 ORDER M.SATHYANARAYANAN,J. The petitioner in the affidavit filed in support of this writ petition, would aver as follows: 1.1. The petitioner company is carrying on the business of purchase of cotton and manufacture of cotton yarn and is holding the entire 100% share of it's company, namely, Annamalaiar Textiles (P) Ltd., and it is also registered dealer under the Tamil Nadu General Sales Tax Act, 1959 (in short 'TNGST Act'). The petitioner company reported in it's monthly return in Form-I for the assessment year 1984-85 before the first respondent, a turnover of ₹ 3,37,94,293.00 and a taxable turnover of ₹ 1,79,24,592.00 and paid the taxes along with the return for that assessment year. 1.2. .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... constitution of the Tamil Nadu Taxation Special Tribunal, they were transferred and re-numbered as Tax Cases 570 and 571 of 1997 and were dismissed on 19.02.1999 and thereby, levy of penalty was confirmed. The petitioner was under the bona fide belief that it was eligible for exemption and made the similar claim for the assessment year 1984-85 and therefore, did not include the turnover relating to the transfer of machinery and a generator in the original return, but subsequently, claimed exemption through supplementary return. 1.7. The petitioner would further state that the first respondent vide proceedings dated 31.03.1986, issued the pre5 assessment notice, wherein he has proposed to levy tax on the turnover relating to the transfer of machinery and a generator made by the petitioner in favour of the subsidiary company to the tune of ₹ 4,54,401.00 at 12% single point; the transfer of machinery to the tune of ₹ 1,18,285.06 at 8% single point and also penalty of ₹ 1,18,937.00 under Section 12(5) of the TNGST Act, stating that the petitioner had claimed exemption in the supplementary return on 01.02.1985 with reference to transfer of machinery made in favour o .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... represented on 13.05.1999. 1.12. The petitioner also filed a separate petition to treat the appeal as filed within the limitation under Section 31 of the TNGST Act by reckoning the limitation from 16.04.1999 and not from 28.05.1986. The Appellate Authority, vide order dated 18.07.2001 had rejected the same as time barred and the petitioner filed further appeal before the Sales Tax Appellate Tribunal in M.T.A.No. 34 of 2002 and it was dismissed on 28.02.2003. The petitioner challenging the legality of the same, filed a Tax Case Revision (SR)No.1620 of 2003 and the same was yet to be numbered and since the precipitative action was taken, the petitioner filed O.P.No. 313 of 2004 praying for stay of further proceedings till numbering of Tax Case by the Special Tribunal, but for want of coram, it could not be numbered and notice was ordered on 16.02.2004. 1.13. The Tamil Nadu Taxation Special Tribunal was abolished and all the matters were transferred to the file of this Court and therefore, the papers were represented and the transferred papers were also numbered as W.P.No.2294 of 2006. 1.14. It is the case of the petitioner that on account of the said reasons, the delay had .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... iling W.P.No.4593 of 1986, made a challenge to the pre-assessment notice dated 31.03.1986 and obtained an interim order on 20.05.1986 and it was communicated to the first respondent on 26.05.1986 and on receipt of the same, the first respondent served the assessment order dated 15.05.1986 on the petitioner on 28.05.1986 by confirming the proposal as per the pre-assessment notice dated 31.03.1986. Thereafter, the petitioner filed W.M.P.Nos.8069 and 8070 of 1986 for amendment of the prayer and also for ad-interim injunction and they were ordered on 13.08.1986. Therefore, the petitioner was very well aware of the assessment order dated 15.05.1986. 8. The Tamil Nadu Taxation Special Tribunal came to be constituted and the said writ petition was numbered as T.P.No.136 of 1997. The Special Tribunal vide order dated 03.07.1997, has observed that since the petitioner has approached the Tribunal at the stage of notice, dismissed it as premature and time was granted till 30.11.1997. 9. It is pertinent to point out at this juncture that even prior to passing of the order by the Tribunal, the petitioner was very well aware of the assessment order dated 15.05.1986 and therefore, it ought .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... nt Commissioner and as per sub-section (1) of Section 31 of the Act, the appeal is to be preferred within thirty days from the date on which the order was served on him in the manner prescribed and as per the first proviso, the Appellate Assistant Commissioner may, within a further period of thirty days, admit an appeal presented after the expiry of first mentioned period of thirty days, if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period. 18. In Quantas Engineers Promoters (P) Ltd. v. TNTST (Mad) reported in 2003 (131) STC 529, a similar issue arose for consideration and the Division Bench of this Court after placing reliance on the decision in Un of Ind v. Popula Con Co. reported in 2001 (8) JT 271, held that when Section 5 of the Limitation Act is not applicable to the proceedings, Article 226 of the Constitution of India cannot be used as a magic wand to get over the bar of limitation. 19. TNGST Act is the self-contained statute and Section 31(1) and the first proviso of the Act provide a period of limitation (30 days + 30 days) and in the light of the above cited judgment, any period exceeding 60 da .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates