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TMI Blog2016 (10) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... at he has become functus officio and cannot deal with the matter in the light of the orders passed earlier. 3. In W.P.No.16088 of 2014, the petitioner has challenged the order dated 25.01.2012, which is an order of assessment for the assessment year 2006-07. 4. The facts, which are relevant for the disposal of the Writ Petition, are that the petitioner was carrying on business under the name and style of 'Kohinoor Agencies' doing resale of Petrol, Diesel and Lubricants and it appears that they are chronic defaulters in payment of sales tax and several proceedings were initiated for the other assessment years also. In respect of the subject assessment year, namely, 2006-07, the petitioner was served with a notice of demand, dated 13.02.2009, calling upon the petitioner to pay the tax at the rate of 12% on the turnover of Rs. 43,55,05,321/- being a sum of Rs. 57,33,431/-. Apart from the tax demand, a separate notice of penalty was also issued on 13.02.2009, directing the payment of penalty of Rs. 4,56,58,699/-. The petitioner challenged the same by filing a Writ Petition in W.P.No.5907 of 2009, and an interim order was granted. Subsequently, by order dated 14.06.2009, the W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of this Court in W.A.No.1732 of 2009, and took up for consideration only with regard to the levy of penalty under the provisions of the PGST Act, 1967 read with Section 81 of the PVAT Act, 2007, and granted relief to the petitioner. 7. The petitioner being aggrieved by such order, preferred an appeal before the Appellate Assistant Commissioner, Puducherry (CT), which was taken on file as APRR.No.16/PGST/2012-13. The Appellate Authority returned the appeal as not maintainable for the reason that earlier appeal filed by the petitioner against the Assessment order was allowed and remanded and after the remand, the Assessing Officer has passed the fresh order and such order cannot be appealed against to the extent of the findings confirmed by the appellate or the higher authorities or Court. Further, it was pointed out that the remand is restricted to reassessment or re-examination of certain specified points, and the other points decided by the Appellate Authority or left undecided by it, acquire finality which cannot be disturbed except by recourse to a review under Section 55 or second appeal under Section 36. In this regard, the Appellate Authority placed reliance on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l bunk after paying a sum of Rs. 20,00,000/-. 6. Learned counsel appearing for the respondents has no objection provided some appropriate security is given for the balance amount towards penalty and interest. This submission is also quite legitimate. 7. In the circumstances, the appellant will deposit a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs only), within a period of one week from today, whereupon the petrol bunk will be permitted to be restarted and the remaining amount will be cleared within one week thereafter. The respondents will have a charge on the petrol bunk for the balance amount of Rs. 82,18,566/- which is due towards penalty as per the order dated 13th February, 2009 and that charge will continue until the appeal filed against the order dated 13th February, 2009, is heard and disposed of. In the event of the amount of Rs. 20,00,000/- being not paid within one week of subsequent amount within one week thereafter, it is open to the respondents to revive the order dated 10th November, 2009 and act accordingly. 8. In view of what is stated above, the impugned order passed by the learned Single Judge is substituted by this order and the order dated 10th November, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the clear directions of the Hon'ble Division Bench. Issue No.2:- 12. The Appellate Authority after considering the arguments advanced by the petitioner and the Revenue, remanded the matter for fresh consideration by order dated 17.10.2011. The operative portion of the order reads as follows:- 7.After hearing the arguments of both the parties and after careful perusal of the assessment records, the fact remains that: (a) The assessment order has been passed without giving reasonable opportunity to cross verify the documents on hand. Now, if the AO accepts to make available and cross verify the invoice wise details of the purchases made by the appellant from the oil corporation, and the C-form the dealer has given to oil corporation the assessment order would be precise and proper as held in the judgment passed by the Hon'ble Madras High Court in T.M.Rajaganapathi Traders vs. Commercial Tax Officer, Salem (2005) 142 STC 130. (b) Further, the AR had contended that Lubricants was purchased locally. On perusal of the pre-assessment notice, lubricants was not brought under taxation but in the impugned final order it is shown as taxable @ 12% (claimed as 2nd sale but not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand and the proper effect of the amount of tax deposited by the petitioner. Therefore, the findings rendered by the Assessing Officer in the order of assessment, dated 25.01.2012, that the petitioner has accepted his tax liability and the contest is only with regard to the penalty, is an incorrect findings. Accordingly, issue No.3, is decided in favour of the petitioner. Issue No.4:- 16. In the light of the finding rendered by this Court on issue Nos.1 to 3 above, it has to be necessarily held that the order passed by the Appellate Authority, dated 30.08.2012, also requires interference, because the Court has held that the payment of the tax by the petitioner, cannot prejudice the petitioner to pursue the appellate remedy, more so, in the light of the observations of the Hon'ble Division Bench. Further, the Appellate Authority while considering the appeal took into consideration all issues and remitted the matter for fresh consideration and therefore, it is an open remand and not a restricted remand order to decide the question of penalty alone. At this juncture, it has to be emphasised that the payment effected by the petitioner cannot be construed as an estoppel from pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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