Madras High Court
Tvl.Thirumalai Chemicals ... vs The Assistant Commissioner (Ct) on 18 January, 2021
W.P.Nos.9503 & 9504 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.Nos.9503 & 9504 of 2015
and
M.P.Nos.1 & 1 of 2015
Tvl.Thirumalai Chemicals Limited,
Represented by its Authorized Representative,
N.Nambirajan,
No.25-B, Sipcot Industrial Complex,
Ranipet – 632 403, North Arcot District. ... Petitioner in both W.Ps.
Vs.
1.The Assistant Commissioner (CT),
Ranipet (Sipcot) Assessment Circle,
Ranipet (Sipcot).
2.The Appellate Deputy Commissioner (CT),
Commercial Taxes Buildings, Vellore. ... Respondents in both W.Ps.
Prayer in W.P.No.9503 of 2015: Writ Petition is filed under Article 226 of the
Constitution of India praying for the issuance of Writ of Certiorarified
Mandamus, to call for the records on the files of the 2nd respondent in
N.Dis.272/2015 (TNGST) dated 27.02.2015 and connected proceedings of the
1st respondent in TIN.33274360093/2006-2007 dated 28.01.2015 and quash the
same and further direct the 1st respondent to pass order afresh in accordance
with law.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.9503 & 9504 of 2015
Prayer in W.P.No.9504 of 2015: Writ Petition is filed under Article 226 of the
Constitution of India praying for the issuance of Writ of Certiorarified
Mandamus, to call for the records on the files of the 2nd respondent in
N.Dis.273/2015 (VAT) dated 27.02.2015 and connected proceedings of the 1st
respondent in TIN.33274360093/2006-2007 dated 28.01.2015 and quash the
same and further direct the 1st respondent to pass order afresh in accordance
with law.
For Petitioner :Mr.R.Senniappan
(in both W.Ps)
For Respondents : M/s.G.Dhanamadhri
(in both W.Ps) Government Advocate (T)
COMMON ORDER
Heard Mr.R.Senniappan, learned counsel for the petitioner and
Mrs.G.Dhanamadhri, learned Government Advocate appearing for the
respondents and with the consent of either side, the writ petition is taken up for
disposal.
2.The petitioner is a dealer in hides and skins and is an assessee on
the file of the first respondent herein under the provisions of the Tamil Nadu
Value Added Tax Act, 2006 [TNVAT Act]. In this writ petition, the petitioner
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W.P.Nos.9503 & 9504 of 2015
questions the order passed by the second respondent who is the appellate
authority, who has rejected the petitioner's appeal petition in A.P.VAT
No.73/2015 by order dated 10.05.2016 as not entertainable.
3.The facts which are relevant for the disposal of these writ petitions
are that the petitioner was issued a revision notice for the year 2012-13
proposing to revise the total and taxable turn over of the petitioner, apart from
proposing to reverse the Input Tax Credit and imposing penalty. The
petitioner submitted their objections and the Assessing Officer completed the
assessment and passed an order on 30.12.2014. Thereafter, the petitioner filed
an application on 22.01.2015 requesting for rectification of certain mistakes
which have crept in the order of assessment. These petitions were presented
under Section 84 of the TNVAT Act. Several issues were pointed out in the
said petition, which were considered by the Assessing Officer and the
Assessing Officer passed an order dated 03.03.2015.
4.The learned counsel appearing for the petitioner as well as the
learned Government Advocate (T) appearing for the respondents would admit
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W.P.Nos.9503 & 9504 of 2015
that except for one issue pertaining to invisible loss, all other issues which were
brought to the notice of the first respondent in the rectification petition were
considered and a decision was taken in favour of the petitioner. Only with
regard to the issue pertaining to invisible loss, the petitioner's grievance is that
a proper finding was not given by the Assessing Officer. Therefore, the
petitioner preferred an appeal to the second respondent by appeal petition dated
23.03.2015. This appeal petition has been rejected as not entertainable by the
second respondent/Appellate Authority by the impugned order.
5.On perusal of the impugned order, it is seen that the Appellate
Authority, after extracting the grounds of appeal, has devoted more than 4 to 5
paragraphs of the order commenting upon the action initiated by the Assessing
Officer in the petition filed by the petitioner under Section 84 of the TNVAT
Act. In my view, this was uncalled 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 was to examine 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.
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W.P.Nos.9503 & 9504 of 2015
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 order dated 30.12.2014. Thus, the exercise adopted by the
second respondent was uncalled for.
7.Secondly, it has to be seen as to whether the second respondent was
justified in rejecting the appeal as not entertainable. This conclusion of the
second respondent is incorrect, since the order passed by the Assessing Officer
under Section 84 of the TNVAT Act stood merged with the order of
Assessment dated 30.12.2014. Thus, in effect, the order of assessment passed
against the petitioner is a modified order or rectified order passed pursuant to
the exercise of powers under Section 84 of the TNVAT Act.
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W.P.Nos.9503 & 9504 of 2015
8.In the light of the said fact, the conclusion arrived at by the
Appellate Authority that the appeal is not entertainable is incorrect. I am
supported by the decision of the Hon'ble Division Bench of this Court made in
the case of State of Tamil Nadu Vs Sabarigiri Industries reported in [2013] 58
VST 454 (Mad). Among other issues which were considered by the Hon'ble
Division Bench, the first issue which was taken for consideration was regards
the maintainability of the appeal. The facts of the said case also was more or
less identical to the case on hand and while deciding the question relating to the
maintainability, the Hon'ble Division Bench has held as follows:
''6.As far as the first issue on the
maintainability of the appeal is concerned, in the
decision reported in 39 STC 260 STATE OF TAMIL
NADU V, CROMPTON ENGG. CO., this Court held
that there 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
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W.P.Nos.9503 & 9504 of 2015
normally to appeal remedy. In so holding, this Court
referred to the provision under Section 55(4) of the
Tamil Nadu General Sales Tax Act, 1959, inserted by
Amedment Act No.31 of 1972, providing for appeal
and revision remedy when an order of rectification is
made, and not when the authority concerned refuses
to pass an order of rectification.
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:-
''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 aggreived by
such modification, a remedy is required to be
provided. For that prupose 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
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W.P.Nos.9503 & 9504 of 2015
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.''
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, these writ petitions are 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.
Consequently, connected miscellaneous petition is closed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
18.01.2021
Index : Yes / No
Internet : Yes/ No
jas
Notes:-In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
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W.P.Nos.9503 & 9504 of 2015
To
1.The Assistant Commissioner (CT),
Ranipet (Sipcot) Assessment Circle,
Ranipet (Sipcot).
2.The Appellate Deputy Commissioner (CT),
Commercial Taxes Buildings, Vellore.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.9503 & 9504 of 2015
C.SARAVANAN, J.
jas
W.P.Nos.9503 & 9504 of 2015
and
M.P.Nos.1 & 1 of 2015
18.01.2021
https://www.mhc.tn.gov.in/judis/
