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TMI Blog2018 (3) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matters were remanded to the respondent for fresh consideration and while reconsidering the appellant's application for rectification of error, dated 13.12.2013, the respondent should afford an opportunity of personal hearing and after considering the matter in its entirety, pass a speaking order on merits and in accordance with law, on the two issues, which have been pointed out by the appellant, viz., with regard to the error in inclusion of the purchase turnover, which has been exempted and with regard to the sale of assets. 2. Short facts leading to filing of the appeals, are as follows: The appellants are hoteliers, engaged in the business of supply of food and drinks to customers and registered dealer, on the file of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt orders, more particularly, the findings rendered in paragraph 22/23 is concerned, the writ Court found that the Assessing Officer has accepted the stand taken by the appellant in their objections, for exempted sales (liquor sales) and also levy of tax under Section 12 and dropped the proposal and thus, appellant in their objections for exempted sales (liquor sales) and exemption to the tune of Rs. 71,69;3401 - for the assessment year 2008-09 and Rs. 70,70,8751 - for the assessment year 2009-2010, was granted in favour of the appellant. 5. Before the writ Court, it was the case of the appellants that though the above finding was recorded by the Assessing Officer in the assessment orders, while computing the tax in paragraph 24/25 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have sought to quash the findings of the Assessing Officer, on these two issues, by setting aside the assessment on the above two heads. 8. Before the writ Court, the respondent has filed a counter, contending inter alia that the appellants have not filed any documents and details relating to the exempted sale to prove that the sales are eligible for exemption, for which, the writ Court has observed that the averment in paragraph 9 of the counter affidavit is wholly inconsistent with the finding recorded in the assessment orders, wherein, the benefit of exemption has been extended to the petitioner. Therefore, the writ Court observed that the counter affidavit has been filed, is without proper application of mind. 9. After hearing both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the two issues which have been pointed out by the petitioner, namely, with regard to the error in inclusion of the purchase turnover which has been exempted and with regard to the sale of assets." 10. Being aggrieved by the order passed by the Writ Court, the present appeal has been filed, on the following grounds, "(1) The Writ Court erred in setting aside the order dated 24.12.13 of the respondent which is the order rejecting the application for rectification, when the order impugned in the writ petition was the assessment order dated 29.11.13 only and not the order dated 24.12.13. (2) Writ petitions were filed challenging the assessment order on the ground of violation of principles of natural justice, absence of jurisdiction an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy of purchase tax. (6) The amenities and collection charges had suffered service tax under the Finance Act and hence it was not open to the respondent to levy sales tax on the same transaction as per the principles stated by the Supreme Court in 145 STC 1 (Bharat Sanchar Nigam limited vs. Union of India), which plea was not considered by the respondent in the counter affidavit and hence the contention ought to have been accepted by the writ Court. (7) TNVAT Act conferred power on the respondent to levy tax on a transaction of sale or purchase only and not on any transaction which yielded income and which had also suffered service tax under the Finance Act, and hence the impugned levy is without jurisdiction. (8) Appellant had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rectification petitions have been passed on 24.12.2013, it is not known, as to why, the appellant has not chosen to challenge the rectification orders, dated 24.12.2013, in the writ petitions, filed on 13.02.2017. At this juncture, it is also relevant to extract Paragraph 9 from the affidavit filed to W.P.Nos.2290 and 2291 of 2014, as follows: "9. I state that after receipt of the impugned order, the petitioners had filed a petition for rectification under Section 84 of the TNVAT Act, requesting the respondent to rectify the errors apparent on the face of the record. I state that the respondent had passed order, dated 24.12.2013, received on 24.12.2013, stating that revision of assessment, under Section 84 was not capable of compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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