TMI Blog2017 (9) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... r the appeal on merits and in accordance with law. The only conclusion that could be arrived at is to hold that the impugned orders rejecting the petitioner's appeals are not sustainable - the second respondent is directed to take on file the appeal petitions, hear the parties and decide the matter on merits and in accordance with law - petition allowed by way of remand. - W.P.Nos.22236 and 22237 of 2017 W.M.P.Nos.23269 and 23270 of 2017 - - - Dated:- 24-8-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. N. Inbarajan For the Respondents : Mr. S. Kanmani Annamalai ORDER Heard Mr.N.Inbarajan, learned counsel for the petitioner and Mr.S.Kanmani Annamalai, learned Additional Government Pleader appearing for the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced by the petitioner and the petitioner has not challenged the original assessment orders before the appellate authority and they filed the appeals only as against the revised orders dated 16.03.2017 and 20.03.2017. 5.The legal issue to be considered in these cases is whether the reason assigned by the second respondent for rejecting the appeals is proper. Similar issue was tested by this Court in the case of P.C.W.Castings Private Ltd. vs. The Assistant Commissioner (CT), Nandambakkam Assessment Circle, Chennai and another in W.P.No.38853 of 2016 dated 08.11.2016. In the said case also, the appeal was presented against a rectified order of assessment. This Court, after taking into consideration the earlier order passed in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called for, since the appeal is by the dealer and not by the revenue. Therefore, all that the Appellate Authority should have seen in the appeal petition is as to whether the petitioner has made out any grounds to interfere with the rectified assessment order, only with regard to the points which have been held against the petitioner. 6.In other words, what can be seen by the Appellate Authority is with regard to the correctness of the order passed by the Assessing Officer, which is not to the satisfaction of the dealer. This is so because the revenue did not prefer any appeal against the order passed by the Assessing Officer entertaining the petition under Section 84 of the TNVAT Act and rectifying the mistakes in the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a clear and a real distinction between an order allowing an application for rectification and thereby rectifying or modifying the original order of assessment and an order rejecting an application for rectification. When the rectification proceedings resulted in a positive action, which has the effect of destroying the finality of original assessment, thereby reopening the assessment order itself, then 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 Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulting in the modification of the original order passed, the assessee has the right of appeal before the appellate forum.' 9.In the light of the above discussion and the decision of the Hon'ble Division Bench of this Court, the impugned order 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. 7.Thus, the legal issue, which requires consideration in this writ petition, is squarely covered by the aforementioned decision. Therefore, the impugned order calls for interference. 8.Accordingly, the writ petition is allowed, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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