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2016 (11) TMI 547 - MADRAS HIGH COURT

2016 (11) TMI 547 - MADRAS HIGH COURT - TMI - Maintainability of appeal - Doctrine of merger - whether the petitioner was entitled to concessional rate of tax, in the absence of appropriate Declaration Forms? - Held that: - This very issue came up for consideration before this Court in the case of ARTIS LEATHERS v. THE ASSISTANT COMMISSIONER (CT) AND ANR [2016 (9) TMI 824 - MADRAS HIGH COURT] where the Appellate Authority refused to entertain the Appeal on the ground that it was passed as agains .....

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n the provisions relating to appeal would lie. On the other hand, when the Assessing Officer refuses to interfere with the original order and that order is allowed to remain intact, 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 whe .....

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within the time permissible? - Held that: - on the date of presenting the Appeal on 12.07.2016, 25% of the disputed tax was not paid. However, within a short period, i.e subsequent to the Assessing Officer giving credit the Declaration Forms, revised assessment order was passed and as per the revised order, the petitioner has remitted 25% of the disputed tax. Therefore, for all purposes, the date of remittance of ₹ 3,55,000/-, being the 25% of the disputed tax should be taken as the prope .....

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& WMP No.31153 of 2016 - Dated:- 25-10-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. V. Srikanth For the Respondents : Mr. K. Venkatesh ORDER Heard Mr.V.Srikanth, learned counsel for the petitioner and Mr.K.Venkatesh, learned Government Advocate accepting notice on behalf of the respondents and with the consent of the learned counsel appearing on either side, the Writ Petition itself is taken up for final disposal. 2. The petitioner is a registered dealer on the file of the second respond .....

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016. The issue which arose in the Assessment proceedings was whether the petitioner was entitled to concessional rate of tax, in the absence of appropriate Declaration Forms. The petitioner preferred an Appeal to the first respondent on 12.07.2016. The Appeal was filed well within the period of limitation. In the meantime, since certain declaration Forms were received by the petitioner, they presented the same before the Assessing Officer, who rightly accepted those Forms and passed revised orde .....

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overed by form F ₹ 27,225/- @ 5%. Further, the petitioner mentioned that the tax due on the disputed turnover is ₹ 14,12,297/- and the petitioner has paid ₹ 3,55,000/-, being 25% of the disputed tax and enclosed the challan to prove the same. The petitioner requested that the Appeal may be admitted for consideration on merits. The petitioner also filed a Stay Petition along with the Appeal and prayed for stay of the balance amount of tax. 4. However, the first respondent has re .....

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ct. While allowing the Writ Petition and directing the Appeal to be taken on file, this Court passed following order: "7.Secondly, it has to be seen as to whether the second respondent was justified in rejecting the appeal as not entertainable. This conclusion of the second respondent is incorrect, since the order passed by the Assessing Officer under Section 84 of the TNVAT Act stood merged with the order of assessment dated 30.12.2014. Thus, in effect, the order of assessment passed again .....

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Hon'ble Division Bench, the first issue which was taken for consideration was regards the maintainability of the appeal. The facts of the said case also was more or less identical to the case on hand and while deciding the question relating to the maintainability, the Hon'ble Division Bench has 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 v.CROMPTON ENGG. CO., this Court held th .....

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Officer refuses to interfere with the original order and that order is allowed to remain intact, 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 .....

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he Act has been introduced. That new sub-section (4) of Section 55 does not confer a right on an 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 .....

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calls for interference. Accordingly, the writ petition is allowed and the impugned order is set aside and the appeal petition is restored to the file of the second respondent, who shall hear and decide the appeal on merits and in accordance with law. Consequently, connected miscellaneous petition is closed. No costs." 6.Thus, the proper interpretation that should be given to the case on hand is that the order rectifying the original assessment order should stand merged with the original ass .....

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