Madras High Court

Dalmia Cement (Bharat) Limited vs The State Tax Officer on 22 February, 2021

                                                                      W.P.(MD)No.9898 of 2019

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                        DATED :        22.02.2021

                                                  CORAM

                           THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                     W.P.(MD)No.9898 of 2019
                                               and
                                    W.M.P.(MD)No.7756 of 2019


                Dalmia Cement (Bharat) Limited,
                rep.by Shri.R.Gururajan,
                Deputy Executive Director
                     (Finance and Accounts),
                Trichy District- 621 651.                                    : Petitioner


                                                      Vs.

                1.The State Tax Officer,
                  Lalgudi Assessment Circle,
                  Lalgudi, Trichy.

                2.The Joint Commissioner (ST),
                  Trichy Division, Trichy -1.                             : Respondents


                PRAYER     :-   Petition      filed    under    Article      226    of    the
                Constitution of India seeking a Writ of Certiorarified
                Mandamus, to call for the records on the files of the
                second     respondent      herein      in     L.Dis.558/2019-A2          dated
                25.01.2019      quash   the    same     and    to   direct    the    second
                respondent to dispose the revision petition filed by the
                petitioner against the proceedings of the first respondent
                in TIN.33363483115/2010-11 dated 02.01.2019 on merits.




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                                                                            W.P.(MD)No.9898 of 2019

                          For Petitioner         :Mr.N.Sriprakash
                                                        for Mr.J.Inbarajan

                          For Respondents        :Mrs.J.Padvamathidevi
                                                   Special Government Pleader

                                                      ORDER

Heard the learned Counsel for the petitioner and the

learned Special Government Pleader appearing for the

respondents.

2.The petitioner is an assessee registered with the

first respondent. The first respondent initiated action

under Section 27 of the Tamil Nadu Value Added Tax Act,

2006 (in short “the Act”) and passed final order under the

said provision on 30.05.2018. The said order is an

appealable order. Instead of availing appeal remedy, the

petitioner filed a petition for rectification of the order

dated 30.05.2018 under Section 84 of the Act. The

rectification petition filed by the petitioner was

dismissed by the first respondent vide order dated

02.01.2019. Aggrieved by the same, the petitioner filed a

revision petition under Section 54 of the Act. The said

petition was returned as not maintainable by the impugned

communication dated 25.01.2019. Challenging the same, the

present Writ Petition has been filed.

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W.P.(MD)No.9898 of 2019

3.The second respondent has filed a counter affidavit

calling upon this Court to sustain the communication

impugned in this Writ Petition. In paragraph No.8 of the

counter affidavit, it has been categorically asserted that

the Writ petitioner ought to have filed an appeal before

the Appellate Deputy Commissioner in terms of Section

84(5) of the Act. It is reiterated that the second

respondent has rightly declined to entertain the revision

petition.

4.I cannot endorse the stand taken by the second

respondent. As rightly contended by the learned Counsel

for the petitioner, an appeal could have been filed

against the order under Section 51 of the Act before the

Appellate Deputy Commissioner. The learned Counsel for

the petitioner took me through the relevant Sections

namely, Section 51(1), 52(1), 54(1) and 84(5) of the Act,

which read as follows:

51.Appeal to Appellate 2[Deputy] Commissioner-- (1) Any person objecting to an order passed by the appropriate authority under section 22, section 24, section 26, sub-sections (1), (2), (3) and (4) of section 27, section 28, section 29, section 34 or sub-section (2) of section 40 other than an order passed by an 3[Deputy] Commissioner (Assessment) may, within a period of thirty days from the date on which

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W.P.(MD)No.9898 of 2019

the order was served on him, in the manner prescribed, appeal to the Appellate 3[Deputy] Commissioner having jurisdiction:

52.Appeal to Appellate 1 [Joint] Commissioner: - (1) Any person objecting to an order passed by the 1[Deputy] Commissioner (Assessment) under section 22, section 24, section 26, sub-sections (1), (2), (3) and (4) of section 27, section 28, section 29, section 34 or sub-section (2) of section 40 may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal to the Appellate 1[Joint] Commissioner having jurisdiction:

54.Powers of revision of 1[Joint] Commissioner.-- (1) Any person objecting to an order passed Or Proceeding recorded under this Act for which an appeal has not been provided for in section 51 or section 52 may within a period of thirty days from the date on which a copy of the order or proceeding was served on him, in the manner prescribed file an application for revision of such order or proceeding to the 1[Joint] Commissioner:

“84.Power to rectify any error apparent on the face of the record.--

.....

(5) The provisions of this Act relating to appeal and revision shall apply to an order or rectification made under this section as they apply to the order in respect of which such order of rectification has been made.”

5.The learned Counsel for the petitioner draws my

attention to the decisions reported in 1977 39 STC 260

(Mad) (The State of Tamil Nadu vs The Crompton

Engineering Company (Madras) Limited) and 1977 SCC Online

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W.P.(MD)No.9898 of 2019

Mad 403 (The State of Tamil Nadu vs The Crompton

Engineering Company (Madras) Limited). The learned Judges

while construing similar provisions, held that if the

original assessment order is rectified or modified, then

an appeal would lie. If on the other hand, the

rectification petition filed by the assessee is dismissed,

then an appeal will not lie and only a revision will lie.

6.The converse situation obtained in WP No.25433 of

2016 (Tvl.Artis Leathers vs. the Assistant Commissioner

(CT), Erode). The dealer suffered an adverse order and to

rectify the same filed a petition under Section 84 of the

TNVAT Act, 2006. The petition was substantially allowed.

But on one issue, an adverse finding was given.

Therefore, the dealer preferred an appeal. The appeal was

rejected as not entertainable by the appellate authority.

Questioning the same, he filed the aforesaid writ

petition. While allowing the writ petition, the learned

Judge held as follows :

“7.Similar view was also taken in the decision of this Court reported in 114 STC 359 STATE OF TAMIL NADU v. SPEEDLINE AGENCIES. This Court, in paragraph 5 of the judgment, pointed out as follows:-

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W.P.(MD)No.9898 of 2019

"Any order made by an authority declining to correct any alleged errors has the effect of leaving the original order intact. It is only when rectification is ordered, and as consequence, one of the parties is aggrieved by such modification, a remedy is required to be provided. For that purpose Section 55(4) of the Act has been introduced. That new sub-section (4) of Section 55 does not confer a right on an applicant who successfully seeks rectification, to file appeal or revision against the order declining to rectify. If the authority which made the original order is of the view that there are in fact no errors in the order which need to be rectified, or can be rectified under Section 55 of the Act, no further proceedings can be taken by applicant, against the refusal of the authority to make an order in favour of the person applying for rectification. "

8.In the light of the above stated decisions and in view of Section 55(4) of the Act, the first question is answered against the Revenue. Thus, as against the order of rectification passed resulting in the modification of the original order passed, the assessee has the right of appeal before the appellate forum.

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W.P.(MD)No.9898 of 2019

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.”

6.Respectfully following the aforesaid decisions, I

hold that an order dismissing the petition for

rectification filed under Section 84 of the Act is only

revisable under Section 54 of the Act and not appealable

either under Section 51 or 52 of the Act. The second

respondent erred in holding that the revision filed by the

writ petitioner is not maintainable. Hence, the

communication impugned in this writ petition is quashed

and the matter is remitted to the respondents for fresh

consideration. The petitioner is at liberty to re-present

the returned papers. The learned Counsel for the

petitioner states that within two weeks from the date of