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TMI Blog2016 (3) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed exemption on the entire turnover. The petitioner has claimed exemption as second purchase of groundnut kernel for Rs. 90,98,160/- from Tvl.Mohammed Rafi, Salem, Suramangalam Circle; claimed exemption as second sales of groundnut oil for Rs. 76,35,810/- purchased from the registered dealer, viz. Tvl.Mohammed Rafi, Salem, Suramangalam Circle; claimed exemption as second sales of palmolein oil for Rs. 50,88,952/-. After considering the facts and circumstances of the case, the Assessing Officer determined the total and taxable turnover at Rs. 2,48,48,535/- and Rs. 1,97,59,583/- respectively, on the ground that the selling dealer A.Mohamed Rafi, Salem, has not reported his taxable turnover to the Department. The petitioner filed an appeal against the said order dated 21.03.2003 to the second respondent, who is the statutory Appellate Authority under Section 31 of the TNGST Act. The said appeal was numbered as A.P.No.41 of 2007 and an order was passed on 12.06.2007 setting aside the order of assessment dated 21.03.2003 with a direction to re-do the assessment, after complying with certain directions. 2.2. Even after the said order passed by the second respondent, the first respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97-98. In pursuance of the notice dated 28.01.2011, the petitioner had given a detailed reply along with all the particulars as required by the first respondent. 2.6. While so, after a lapse of nearly five years from the date of receipt of reply, the present impugned order dated 25.05.2015 has been passed straight away without taking note of the petitioner's reply dated 15.02.2011 and without even following the direction issued by this Court as well as the direction issued by the second respondent on two different occasions. 2.7. It is further submitted by the petitioner that the first respondent has passed the order in TNGST.No.3200130/99-2000 dated 30.08.2001 allowing second sale exemption from tax on the purchases of groundnut and groundnut kernel effected from Thiru A.Mohamed Rafi, Salem, as claimed by the petitioner in respect of the assessment year 1999-2000, after thorough verification of the fact that the selling dealer was very much available with existing registration number. While so, it is not known to the petitioner as to why the present impugned order has been passed disallowing the second sale exemption in respect of the purchases from the same seller Thiru A.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nna Chettiar and Sons, for the assessment years 1997-98 and 1998-99 respectively. 4. The learned Counsel for the assessees submitted that the impugned orders are liable to be quashed as they are contrary to the principles laid down by the Hon'ble Supreme Court in its judgment reported in (1999) 114 STC Page No.1 (Shanmuga Traders Vs.State of Tamil Nadu), as well as the principles laid down by this Court in its judgments reported in (2010) 28 VST 228 (Mad)(State of Tamil Nadu Vs. Sri Alaggar Traders) and in (2007) 8 VST 131 (Mds) (Ragham Polymers Vs.Commercial Tax Officer, Ice House Assessment Circle, Chennai-28). Further, the learned Counsel for the assessees has submitted that the impugned orders are contrary to the specific directions issued by this Court. Further, the learned Counsel for the assessees has submitted that the assessing authority is bound to strictly follow the directions of the appellate authority in making a fresh order and that the assessing authority has no independent jurisdiction to decide the issue at his whims and fancies. Hence, he prayed for setting aside the orders impugned. On the other hand, the learned Additional Government Pleader supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter, after lapse of nearly five years, the impugned orders dated 25.5.2015 have been passed, confirming the original assessment of tax and penalty on the same grounds. Hence, these Writ Petitions have been filed. 7. The vehement contention of the learned Counsel for the petitioners is that since the goods dealt with by the petitioners being declared goods, the question of levy does not arise at all and that the impugned orders of assessment are liable to be quashed, as being contrary to the specific directions of this Court as well as the second respondent and contrary to the principles laid down in the decisions of the Honourable Supreme Court reported in 1999-114-STC-1 (Shanmuga Traders Vs. State of Tamil Nadu), 28 VST 228 Mad (State of Tamil Nadu Vs. Sri Alaggar Traders) and 2007 8 VST 131 (mds) (Ragham Polymers Vs. Commercial Tax Officer) and he prayed for quashing the impugned orders. 8. However, it is strenuously argued by the learned Additional Government Pleader appearing for the respondents submitted that on the basis of the available records and details produced by the petitioners, the impugned orders had been made on the grounds that the seller is a bill trader and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment made by the Assessing Officer was put to challenge in the appeal filed by the petitioners in A.P.No.41 of 2007 and an order came to be passed on 12.06.2007 whereby, the order of assessment dated 21.03.2003 was set aside, however, with a direction to re-do the assessment afresh, after complying with certain directions. 14.2. However, it is the main grievance of the petitioner that the order passed in the above appeal was not at all adhered to by the Assessing Officer during the fresh assessment. It, therefore, amounts to 'non-application of mind' to the orders of the Appellate Authority on the part of the Assessing Officer and that too, even on remand. 14.3. No doubt, this Court has also scrutinised the materials available on record, to consider the claim of the petitioner regarding the non-compliance of certain directions issued by the Appellate Authority on remand and found that there is some force on the contention of the petitioners. 14.4. Subsequently, the first respondent had again issued notice dated 31.12.2007 proposing to assess the same turnover without carrying out any of the directions issued by the second respondent. Therefore, the petitioner request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inaction on the part of the assessing authority, rather than by the action of the assessee. 17. In cases of this nature, timely action would not only generate revenue to the Government but would also thwart the defence of limitation by the assessee and therefore, the assessees cannot escape the clutches of law. When it could be arrived at a conclusion that the loss caused to the Government is only due to the delay in implementation without any valid reason or cause, then, the entire liability/responsibility should be fixed on the erring officials of the Department and then only, there must be an awareness among them about their duties and responsibilities. 18. It is shockingly true that the real peril to justice is nothing but non-implementation of an order in its true letter and spirit. The consequences of imperious behaviour to discard the orders of the Courts and the law are farfletched one and is in the nature of questioning the Power of Judicial review or in other words, the supremacy of the judiciary enshrined under Article 13 of the Constitution of India. 19. Similarly, misconduct flows from commissions as well as omissions and it reflects one's deliberate intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the territorial joint commissioners, necessary actions are not taken by them to enquire about the recovery even after the expiry of the statutory appeal period. A mere issuance of notice for recovery is insufficient. It is the duty of the assessing officer to ensure that the tax due is collected. (iv) In case of attachment by freezing the bank accounts or recovery from the bank account, a copy of the order of attachment or recovery is to be sent to the assesse. (v) Once, directions are issued by the High Court or appellate authority, the same must be strictly followed and implemented within the time frame fixed by the court. (vi) In case of contempt petitions, it is a personal cause of action against an erring officer. Therefore, the Department must ensure that the expenses of professional charges paid to the Counsel appearing on behalf of the contemnor/erring official is met by him and not by the Government. (vii) In case of any loss to the Department on account of the omission of the assessing officer, the loss must be recovered from the delinquent officer. (viii) The territorial Joint Commissioners must only follow up the action taken. They must not influence the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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