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2016 (10) TMI 287 - MADRAS HIGH COURT

2016 (10) TMI 287 - MADRAS HIGH COURT - TMI - Validity of order of Assessment - opportunity of being heard to the petitioner - Held that: - the order passed by the Appellate Assistant Commissioner dated 30.08.2012, calls for interference and consequently, W.P.No.16057 of 2013, has to be allowed. - The Assessing Officer misconstrued the scope of remand, misconstrued the effect of the payment of the tax made by the petitioner as per the direction of the Hon'ble Division Bench resulting in an e .....

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ing 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 .....

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r 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 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 .....

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8377; 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 ₹ 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 Writ Petition was dismissed, wherein it was observed that the petitioner filed a false affidavit before this Court and obtained interim order and since, the appeal was pen .....

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r in W.P.No.23549 of 2009 and the Writ Petition was disposed of, giving liberty to the petitioner to file a revision before the revisional authority. Subsequently, the petitioner filed another Writ Petition in W.P.No.23550 of 2009, challenging the order passed by the Appellate Assistant Commissioner, dated 09.07.2009, by which the petitioner's appeal was dismissed for non-compliance of the mandatory pre-deposit. The Writ Petition was disposed of, by directing the petitioner to pay 25% of the .....

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ities. 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 su .....

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eved 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 .....

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ent of Madras reported in (1977) 40 STC 220 and State Trading Corporation of India vs. State of Tamil Nadu reported in (1995) 96 STC 282. The petitioner has questioned the order passed by the Appellate Authority as well as challenged the assessment order, dated 25.01.2012, which is an order, which was passed after the Appellate Authority remanding the matter for fresh consideration by the Assessing Officer, by his order dated 17.10.2011. 8. This Court heard the learned counsels appearing for the .....

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stricted only to the levy penalty. iii)Whether the Assessing Officer, after the order passed by the Appellate Authority, while completing the assessment, 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 cou .....

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ng 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 after paying a sum of ₹ 20,00,000/-. 6. Learned counsel appearing for the respondents has no objection provided some appropriate security is given for the balance amoun .....

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ted 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 ₹ 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 th .....

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one week thereafter. The respondents were permitted to have a charge of the Petrol bunk for the balance of ₹ 82,80,561/- which is due towards penalty as per the order of the assessment, dated 13.02.2009 and the charge will continue until the appeal filed against the order dated 13.02.2009 is heard and disposed of. If the petitioner does not pay a sum of ₹ 20,00,000/- within the time stipulated, it was open to the respondents to revive the order dated 10.11.2009. Thus, on a plain read .....

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rred 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 Benc .....

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h. 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 .....

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tice, lubricants was not brought under taxation but in the impugned final order it is shown as taxable @ 12% (claimed as 2nd sale but not supported by local purchase details). The purchase details of lubricants may also be verified. (c) The A.O., is also directed to verify the refund of tax amount, if any, as claimed by the appellant. 8. In view of the above, the case is remanded back to the A.O., with directions to take up the case afresh and pass order/s in accordance with law as may be deemed .....

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e Appellate Authority, one would clearly decipher that it is an open remand. This is also made further clear by taking note of the directions issued in paragraph (8), where the Assessing Officer has been directed to take up the case afresh. 14. The learned Government Pleader by referring 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 wh .....

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er 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 misdirected himself in u .....

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, 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 therefor .....

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