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2016 (10) TMI 999 - MADRAS HIGH COURT

2016 (10) TMI 999 - MADRAS HIGH COURT - TMI - Maintainability of appeal when AO has rectified or refused to rectify an order - validity of Return memo - return of appeal petitions filed by the petitioner against the rectified assessment orders - appeals presented after a gap of more than ten months from the date of original order of assessment - what would be the effect of a rectified order? - Section 55(4) of the Act - Held that: - similar issue decided in the case of State of Tamil Nadu vs. Sa .....

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appeal remedy. In so holding, this Court referred to the provisions under Section 55(4) of the Tamil Nadu General Sales Tax Act, 1959, inserted by Amendment Act No. 31 of 1972, providing for appeal and revision remedy when an order of rectification is made, and not when the authority concerned refuses to pass an order of rectification - decided against Revenue. - Whether the appeal petition, which was filed after the passing of the revised order of assessment, could be held to be presented w .....

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ion is still within the period of limitation. - Petition disposed off - impugned return memos are set aside, leaving it open to the petitioner to raise all the contentions before the Appellate Authority. The petitioner is directed to re-present the appeal along with a copy of this order and the Appellate Authority shall entertain the appeal and deal with the same in accordance with law - decided partly in favor of petitioner. - W.P.Nos.28614 to 28618 of 2016, W.P.No.28614 of 2016 - Dated:- 1 .....

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y the petitioner against the rectified assessment orders, as being not maintainable. The reason for returning the appeal petition is on the ground that the appeals have been presented after a gap of more than ten months from the date of original order of assessment, i.e. 5.8.2015 and in the rectified order passed by the Assessing Officer dated 1.6.2016, excepting for the tax paid particulars, all other matters are identical to that of the original assessment order. 4. The legal issue to be deter .....

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provisions of Section 55 of the Tamil Nadu General Sales Tax Act, 1959, which is para materia with Section 84 of the Tamil Nadu VAT Act. While deciding the said question, the Hon'ble Division Bench held as follows :- 6. As far as the first issue on the maintainability of the appeal is concerned, in the decision reported in 39 STC 260, STATE OF TAMIL NADU vs. CROMPTON ENGG. CO., this Court held that there is a clear and a real distinction between an order allowing an application for rectifica .....

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the said order would not be amenable normally to appeal remedy. In so holding, this Court referred to the provisions under Section 55(4) of the Tamil Nadu General Sales Tax Act, 1959, inserted by Amendment Act No. 31 of 1972, providing for appeal and revision remedy when an order of rectification is made, and not when the authority concerned refuses to pass an order of rectification. 7. Similar view was also taken in the decision of this Court reported in 114 STC 359 STATE OF TAMIL NADU v. SPEE .....

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applicant who successfully seeks rectification, to file appeal or revision against the order declining to rectify. If the authority which made the original order is of the view that there are in fact no errors in the order which need to be rectified, or can be rectified under Section 55 of the Act, no further proceedings can be taken by applicant, against the refusal of the authority to make an order in favour of the person applying for rectification. " 8. In the light of the above stated d .....

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appeal would lie. One crucial fact which missed the attention of the Assessing officer is with regard to the tax paid by the petitioner. The petitioner has immediately filed petition for rectification, stating that tax paid should be made note of in the assessment order. Though this application was filed by the petitioner in time, the Assessing Officer passed orders only on 1.6.2016. It is only thereafter, the petitioner could prefer appeal before the Appellate Authority and has preferred the sa .....

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cision of the Hon'ble Full Bench of this Court in the case of State of Tamil Nadu vs. E.P.Nawab Marakkadai, [1996(100) STC 1]. 8. The question which arose for consideration before the Full Bench was whether the appeal petition, which was filed after the passing of the revised order of assessment, could be held to be presented within time, in accordance with the provisions of Section 31 of the Tamil Nadu GST Act and whether remittance made by the petitioner recording the pre-depsoit was valid .....

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