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TMI Blog2015 (4) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 11,10,88,950/- and Rs. 8,52,79,989/- for the year 1992-93 respectively and also levied penalty of Rs. 97,69,325/- for the year 1991-92 and Rs. 2,45,35,251/- for the year 1992-93 under Section 12(3) of the TNGST Act by his proceedings dated 30.10.2009. Aggrieved by the same, the petitioner filed appeals in AP Nos.84 and 85 of 2009 before the Appellate Deputy Commissioner (CT) IV, Chennai disputing the entire turnover and penalty. By proceedings dated 16.2.2010, the Appellate Deputy Commissioner (CT) IV, has partly dismissed and partly allowed the appeals. Consequently, while giving effect to this order, the second respondent passed revised orders by determining the taxable turnover at Rs. 84,62,925/- for the year 1991-92 and Rs. 75,98,505/- for the year 1992-93 by proceedings dated 30.4.2010. However, as against partly dismissed the appeal, the petitioner filed second appeals in T.A.Nos.63 & 64 of 2010 before the Tamil Nadu Sales Tax Appellate Tribunal (MB), Chennai disputing the turnover of Rs. 65,09,935/- and they are pending. 3. While that be so, the Government of Tamil Nadu introduced an Act, called the Tamil Nadu Sales Tax (Settlement of Arrears) Act, 2010 (Tamil Nadu Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be rejected. Accordingly, notices were issued to the petitioner dated 30.6.2011, calling for objections. 5. It is also stated that the demands raised on assessment made by the Assessing Officer on 30.10.2009 have not become settled once as the department is pursuing litigation before the Tribunal to safeguard the interest of revenue. The appeal against the order of the Appellate Deputy Commissioner (CT) IV filed by the department before the Tribunal cannot be said to have been withdrawn and therefore, the demands as per the orders of the Appellate Deputy Commissioner (CT) IV, Chennai shall not be settled demands and consequent to which, the demands as per the original order have to be taken as the basic demands. The demands pending collection for the purpose of consideration under the provisions of the TNST (Settlement of Arrears) Act, 2010 are therefore, the original demands raised by the Assessing Officer in the assessment order dated 30.10.2008. The appeal proceedings have not come to finally and therefore, the demands that shall be considered for computation of payment under the provisions of the Act are the original demands pending as on 30.10.2009. The payment of a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules made or notifications issued under this enactment. 19. The arrears of tax, penalty or interest has been defined in Section2(1)(b) and it includes additional sales tax, surcharge, additional surcharge and central sales tax or penalty or interest pertaining to the assessment years upto 2006-2007 for which assessment has been made prior to 01.08.2011 under the relevant Act and pending collection on the date of filing of application under the Settlement Act. 20. It is not in dispute that the first respondent is the designated authority under the provisions of the Act and appointed by the Government under Section 3. The persons, who are eligible for settlement under the Act has to fulfill the conditions under Section 4 and in this case it is not in dispute that the petitioner was entitled to avail the provisions of the Settlement Act. The procedure for filing an application has been spelt out in Section 5 of the Act. Section 6 deals with determination of amount payable by the applicant and Section 7 deals with rate applicable in determining amount payable and they are as follows: ''5. Application for settlement.- (1) An application for the purpose of section 4 shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) Where it relates to arrears of tax, including any arrears of tax accrued due to non-filing of declaration forms which was in excess of the tax admitted as per the returns filed for the year with the corresponding arrears of penalty and interest, the applicant shall pay forty per cent of such arrears of tax pending collection on the date of application along with interest at seven and a half per cent per annum thereon and on such payment of tax, the balance of tax and interest and the entire penalty shall be waived. (c) Where it relates to arrears of tax, which was admitted as tax due as per returns filed for the year with corresponding arrears of penalty and interest, the applicant shall pay the entire arrears of tax pending collection along with interest at seven and a half per cent. per annum and on such payment, the balance of interest and the entire penalty shall be waived. (d) Where it relates to arrears of penalty or interest or both and where there is no corresponding arrears of tax pending collection on the date of application, the applicant shall pay ten per cent of the penalty and twenty five per cent of interest, the balance of penalty and interest shall be wai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f not more than 10% of the amount determined under sub-section (1), then and then alone the question of demanding further amount under Section 6(2) would arise. If the applicant failed to fulfill the conditions under sub-section (2) of Section 6, his application stands summarily rejected in terms of sub-section (3) of Section 6. Thus, the Act being a Settlement Act to give reprieve to the dealer/applicant and bring him out of the misery has first thrown the onus on the dealer/applicant and he has a statutory duty to compute the rate applicable in accordance with Section 7 of the Act, by considering all the relevant records. If the dealer/applicant properly computes the amount and remits the same and encloses proof of such payment along with the application under Section 5, the same will be taken for verification and if the designated authority, on going through the relevant records, finds that further amount is payable and if the same fall short of not more than 10% grant relief to the dealer and if not the application stands summarily rejected. Therefore, the Act operates on strict limits as clearly defined under the Statute. The onus is not only on the dealer to carefully peruse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010, viz., Tax Demanded Tax paid under Samadhan 1. Rs.1507404/- - Rs.1,14,428/- 2. Rs.1507404/- - Rs.4,18,941/- Total: - Rs.5,33,369/- 3. Rs.1900134/- - Rs.52716/- 4. Rs.1900134/- - Rs.181897/- Total: - Rs.2,34,513/- 10. The reason put forth by the respondents for rejection of the applications filed in Form-I under Sub Section (1) of Section 5 of the Act, 2010 by the petitioner under Samadhan scheme, for settlement of arrears pertaining to the assessment year 1991-92 and 1992-93, is that since the department has filed appeals against the portion of allowing the appeals in A.P.Nos.84 and 85 of 2009 dated 16.2.2010 filed by the petitioner by the Appellate Deputy Commissioner (CT) IV, Chennai before the Tribunal in S.T.A.Nos.30 and 84 and the said appeals are pending for adjudication and no finality was reached as on the date of presentation of the applications by the petitioner under Samadhan scheme and the said scheme is applicable only to settled demand and if any assessment or appeal proceedings are pending, then the demand as per the original order, i.e. assessment order, dated 30.10.2009 has to be taken as the basic demand for calculati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere fact that the order of the appellate authority is not acceptable to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws." 13. In this case, it is not in dispute that as against the orders of the Appellate Deputy Commissioner, both the petitioner and the Government have preferred their appeals and since they are pending, as rightly contended by the respondents, the said appeals cannot be construed as withdrawn, however, for this reason, it is not justified to contend that since the appeals are pending before the Tribunal and the said proceedings have not reached a finality, the demand as per the original order has to be taken as the basic demand for consideration for the applications under Samadhan Scheme. In such view of the matter, this Court is of the view that the impugned orders are liable to be set aside. However, this Court makes it explicit that this order would not have any bearing on the appeal pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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