TMI Blog2016 (10) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, for fresh consideration, who shall afford an opportunity of personal hearing to the petitioner, hear the objections of the petitioner on all issues and redo the assessment in accordance with law - petition allowed - decided in favor of petitioner. - W.P.Nos.16087 & 16088 of 2014 - - - Dated:- 4-8-2016 - Mr.Justice T.S. SIVAGNANAM For the petitioner : Mr.R.Senniappan For the Respondent : Mr.M.Govindaraj G.P., (Pondicherry) Assisted by Ms.Reena Ishwariya AGP C O M M O N O R D E R Heard Mr.R.Senniappan, learned counsel appearing for the petitioner and Mr.M.Govindaraj, learned Government Pleader (Puducherry), and with the consent on either side, these Writ Petitions are taken up for disposal. 2. The petitioner has filed the Writ Petition in W.P.No.16087 of 2014, praying for issuance of Writ of Certiorarified Mandamus to quash the order passed by the Appellate Assistant Commissioner(CT), dated 30.08.2012. The said order pertains to an appeal filed by the petitioner against the order of assessment, dated 13.02.2009, for the assessment year 2006-07. This appeal memorandum was returned on the ground that he has become functus officio and cannot deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was directed to be taken up for consideration. The petitioner did not comply with the condition and filed a Writ Appeal against the said order in W.A.No.1732 of 2009. The said Writ Appeal was disposed of issuing certain directions. 5. The petitioner complied with the condition imposed by the Hon'ble Division Bench, and consequently, the registration certificate of the petitioner was restored and he commenced his business activities. Consequently, the appeal filed by the petitioner against the assessment order dated 13.02.2009, was taken up on file and the Appellate Authority disposed of the same by order dated 17.10.2011. 6. On a reading of the above order, it is seen that the Appellate Authority was justified in remanding the matter on the ground that the order of assessment was passed without giving reasonable opportunity to cross verify the documents on hand and thereafter, to proceed in accordance with law. On such remand, the Assessing Officer passed orders on 25.01.2012. After discussing the merits of the matter, the Assessing Officer held that the petitioner has completely paid the arrears of tax, as directed by the Hon'ble Division Bench of this Court in W.A.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment, by order, dated 25.01.2012, was justified in making observation that the petitioner has already paid the entire tax. and iv)Whether the Appellate Authority is justified in rejecting the Appeal Petition, by order, dated 30.08.2012, on the ground that he has become functus officio. 9. The Court elaborately heard the submissions of the learned counsels for the parties on the above issues and perused the materials placed on record, including the copy of the original file, which was circulated. Discussion and Findings:- 10. The petitioner is sought to be non-suited on the ground that he has paid the entire tax liability as directed by the Hon'ble Division Bench in W.A.No.1732 of 2009. The operative portion of the order of the Hon'ble Division Bench, is as follows:- 5. After the matter is heard for some time, learned counsel appearing for the appellant states that out of the amount of ₹ 57,33,431/- due towards tax arrears, a sum of ₹ 20,00,000/- will be paid within a period of one week and the remaining amount will be cleared within one week thereafter and learned counsel requested that the appellant may be permitted to run the petrol bunk a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is read along with the consequential directions issued in paragraph 7 of the judgment, wherein the petitioner has been permitted to pursue his appeal. It is relevant to note that the charge on the petrol bunk was directed to be retained till the appeal is disposed, which was preferred by the petitioner against an order of assessment, dated 13.02.2009. Therefore, the payments effected by the petitioner pursuant to the judgment of the Hon'ble Division Bench can at best be taken to be a conditional order to enable the petitioner to start the business and contest the appeal and it cannot be construed that the petitioner has accepted his tax liability and paid the amount. If such is the interpretation to be given, then the observation made by the Hon'ble Division Bench that the charge will continue on the petrol bunk to secure the penalty imposed, until the appeal filed against the assessment order is heard and disposed of, would lose its meaning. Therefore, issue No.1 is decided in favour of the petitioner and it is held that the petitioner is not estopped from challenging the order of assessment on the ground that he has paid the tax as per the direction of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an observation contained in paragraph (iii), in page 3 of the appellate order, would submit that the appeal is only as against the penalty. This submission lacks merit as the said observation has been made while setting out the facts of the case and it is not a finding of the Appellate Authority. Therefore, it is held that the order of remand passed by the Appellate Authority dated 17.10.2011, is an open remand and the Assessing Officer was bound to consider all issues. Therefore, issue No.2, is answered in favour of the petitioner. Issue No.3:- 15. While implementing the order of remand and passing the assessment order dated 25.01.2012, the Assessing Officer proceeded on the basis that the petitioner has accepted his tax liability and the appeal itself was only for waiver of penalty. While discussing issue No.2, this Court has come to the conclusion that the contention that the appeal was only with regard to penalty is incorrect, since while deciding issue No.1, the Court held that the payment made by the petitioner pursuant to judgment of Hon'ble Division Bench was without prejudice the petitioner's right to contest the appeal. Thus, the Assessing Officer misdir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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