TMI Blog2018 (9) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has been granted by the Department inasmuch as revised Assessment orders have been passed on 07.06.2018. Consequently, the impugned demand cannot survive any longer. This is not on account of any interpretation of the statute or applying a legal principle, but solely attributable to the orders passed by the Commissioner in favour of the assessee Petition allowed in part. - Writ Petition No.12027 of 2018 And W.M.P.No.14031 of 2018 - - - Dated:- 4-7-2018 - Mr. T. S. Sivagnanam J. For the Petitioners : Mr. K. Ramu For the Respondents : Mr.vijay Narayan Advocate General, Ms.Narmadha Sampath Additional Advocate General And Ms.G.Dhanamadhri Government Advocate ORDER Heard Mr.K.Ramu, learned counsel for the petitioner and Mr.Vijay Narayan, learned Advocate General and Ms.Narmadha Sampath, learned Additional Advocate General, assisted by Ms.G.Dhanamadhri, learned Government Advocate appearing for the respondents. 2.The petitioner has filed this writ petition challenging the notice for recovery of tax and penalty issued by the second respondent dated 16.04.2018 demanding a total amount of ₹ 1,23,89,34,376/- being the tax and penalty payable under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report, Deputy Commissioner (East) Enforcement proposals. High Court orders and Additional Chief Secretary/Commissioner of Commercial Taxes letter are submitted for perusal and orders. 4.As could be seen from the said communication, the second respondent, being the Assessing Officer, having been bound over by the directions issued by the Commissioner of Commercial Taxes vide his order dated 26.10.2016, probably with a view to ensure that the records are set straight has sent a communication dated 21.03.2018. In the meantime, the petitioner submitted a representation to the Joint Commissioner (CT), Chennai (East) Division, dated 03.05.2018 requesting withdrawal of the notice dated 16.04.2018 demanding tax and penalty and to issue revised Assessment order as per the direction issued by the Commissioner vide his order dated 26.10.2016. On receipt of the same, the Joint Commissioner addressed the Commissioner of Commercial Taxes vide communication dated 28.05.2018 after setting out all the factual details, quoting the relevant statutory provisions, requested the Commissioner for necessary guidance and instructions. The operative portion of the said communication reads as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... randed Sweets and Savouries is not in order and the same is liable to be taxed at 4% from 01.04.2010 to 11.07.2011 under the notification issued in G.O.Ms.No.33, CTR (B2) dated 29.03.2011 and at 5% from 12.07.2011 under G.O.Ms.No.78, CTR (B2) dated 11.07.2011. 2. As seen from the revision of assessments made for the years 2007-2008 to 2010-2011 and 2013-2014, the revision of assessment was made under Section 27 of the TNVAT Act, 2006 and Penalty under Section 27(3) of the TNVAT were also levied at 150% of the differential tax due which is also not in order. The revisions in this case was not owing any escapement of turnover or wrong availment of Input Tax Credit warranting revision under Section 27(1)(a) of the TNVAT Act, 2006. The revisions made falls under Section 27(1)(b) of the TNVAT Act, 2006 pertains to assessment made at lower rate than at higher rate to which it has to be assessed. All the revisions were made by assessing the reported and deemed assessed turnover at 12.5%/14.5% in-lieu of 2% and such revisions on the basis of differential rate of tax will always fall under Section 27(1) (b) of the TNVAT Act, 2006 and not under Section 27(1)(a) of the TNVAT Act, 2006. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts having trademark is branded in nature and should be taxed accordingly. 8. Though such a stand has been taken by the Commissioner, unfortunately his officers have not understood the matter in the manner now projected by the Commissioner. The second respondent/ Assessing officer understood the order as a clarification or in other words as a positive direction. However, the Assessing Officer taking note of the fact that the issue is sub-judice, had addressed the Deputy Commissioner seeking clarification vide his letter dated 21.03.2018 in which he specifically asked for guidance whether to cancel all the proceedings levying penalty at higher rate and treating the goods sold by the petitioner as unbranded goods. He wanted specific direction as to whether the arrears accrued on revision may be eliminated and whether deviation proposal may be submitted to the Deputy Commissioner, Enforcement Chennai (East) based on the communication of the Additional Chief Secretary/Commissioner of Commercial Taxes (dated 16.10.2016). Further, copies of the Business Intelligence Unit report, Deputy Commissioner (East) Enforcement Proposals, High Court orders and order of the Additional Chief Secre ..... 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