Madras High Court
M/S.Cetex Petrochemicals vs The Secretary on 7 September, 2022
Order dated 07.09.2022
in W.P.No.40669 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.09.2022
Coram:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.40669 of 2005
M/s.Cetex Petrochemicals,
(now known as M/s.KEC Internation Ltd.,)
presently at Transasia,
Opp. Oberai Garden Estate,
Chandivali Studio Road,
Chandivali Sakinaka, Mumbai-400 007. .. Petitioner
Vs.
1. The Secretary,
Tamil Nadu Sales Tax Appellate Tribunal (MB),
City Civil Court Buildings,
Chennai-600 104.
2. The Appellate Assistant Commissioner (CT) IV,
Kuralagam Annexe, VI Floor,
Chennai-600 108.
3. The Commercial Tax Officer,
Mylapore Assessment Circle,
46, Greenways Road,
Chennai-600 028. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying
for issuance of a Writ of Certiorari to call for the records of the first respondent
herein, in T.A.No.736 of 2000 and COP.No.54 of 2001 and quash the order dated
31.10.2005 passed therein.
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Order dated 07.09.2022
in W.P.No.40669 of 2005
For petitioner : Mr.R.L.Ramani, Senior Counsel for Mr.K.J.Chandran
For respondents: Mr.T.N.C.Kaushik, Addl.G.P.
ORDER
The petitioner/assessee-Company has come forward with this Writ Petition
questioning the order dated 31.10.2005 passed by the Tamil Nadu Sales Tax
Appellate Tribunal in T.A.No.736 of 2000 and C.O.P.No.54 of 2001.
2. The sum and substance of the issue on hand is that there was a levy of
tax @ 8% on the turnover at Rs.2,90,12,360/- and also levy of penalty in terms
of Section 12(3)(b) of the Tamil Nadu General Sales Tax Act on Rs.52,80,812/-.
Questioning the initial assessment order dated 31.07.1995, the
petitioner/assessee has filed an appeal before the appellate authority, who
accepted the contention of the petitioner by order dated 03.03.1997 and while
setting aside the assessment order, remanded the matter back to the Assessing
Officer to consider the case afresh in the light of the observations made therein.
Thereafter, the original authority, namely the Assessing Officer has passed
revised assessment order on 25.03.1999.
3. According to the petitioner-assessee, when there is no order in the eye
of law and that the appellate authority's order has not been given effect to, the
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Order dated 07.09.2022
in W.P.No.40669 of 2005
issue of maintainability has been raised contending that there cannot be any
revision when no original assessment order exists in the eye of law. The
appellate authority, by order dated 18.09.2000, accepted the contention of the
petitioner-assessee and set aside the re-assessment order and the penalty
imposed under the TNGST Act and remanded the matter back to the original
authority (Assessing Officer). Aggrieved by the said finding, the writ petitioner-
assessee approached the Tamil Nadu Sales Tax Appellate Tribunal and
contended that when there is no order in the eye of law, the question of remand
does not arise and that the order of the Appellate Authority dated 03.03.1997
has not been complied with. According to the learned counsel for the petitioner-
assessee, the Tribunal erred in passing the order dated 31.10.2005, confirming
the order passed by the appellate authority in remanding the matter to the
original authority for fresh consideration. According to the petitioner, in terms of
Section 16 of the TNGST Act, there cannot be any proceedings and at this distant
point of time, there cannot be any revision of the assessment, when there is no
assessment at all.
4. Learned counsel for the respondents submitted that though the facts
narrated by the petitioner-assessee are not in dispute, the Tribunal has
confirmed the order remitting the matter back to the original authority and that
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Order dated 07.09.2022
in W.P.No.40669 of 2005
in the order passed by the appellate authority, it has been categorically held that
the Assessing Officer has been directed to consider all the facts including the
facts leading to re-assessment, the explanation given by the petitioner-assessee
and the remand order, dated 18.09.2000 and to re-examine the issue de-novo by
deciding the nature of the transaction.
5. Heard both sides and perused the materials available on record.
6. The fact is that there was an order of the Assessing Officer, dated
31.07.1995, which has been interfered with by the appellate authority on
03.03.1997 and that the revisional order dated 25.03.1999 is nullity, as the order
of the appellate authority dated 03.03.1997 has not been given effect to by the
Assessing Officer, and it does not mean that there cannot be any assessment at
all by the Assessing Officer. What the appellate authority in the order dated
18.09.2000 held that there shall be a de-novo assessment by taking into account
the order of the appellate authority dated 03.03.1997.
7. As observed earlier by us, there cannot be any revision when there is
no assessment at all, and this will not preclude the original authority from
assessing the matter afresh and pass orders in accordance with law in terms of
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the order dated 03.03.1997, remanding the matter back to the original authority.
8. Considering the fact that the dispute pertains to the Assessment Year
1993-1994 and also taking into account the fact that considerable time has
lapsed, we direct the original authority to pass fresh order of assessment in
terms of the order of the appellate Commissioner, dated 25.03.1999. All the
issues are left open to be decided by the original authority, within a period of
three months from the date of receipt of a copy of this judgment.
9. With the above observations/directions, the present Writ Petition is
allowed and the matter is remanded back to the original authority. There shall be
no order as to costs.
(S.V.N.J) (C.S.N.J)
07.09.2022
Index: Yes/no
Speaking Order: Yes/no
cs
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Order dated 07.09.2022
in W.P.No.40669 of 2005
To
1. The Secretary,
Tamil Nadu Sales Tax Appellate Tribunal (MB),
City Civil Court Buildings,
Chennai-600 104.
2. The Appellate Assistant Commissioner (CT) IV,
Kuralagam Annexe, VI Floor,
Chennai-600 108.
3. The Commercial Tax Officer,
Mylapore Assessment Circle,
46, Greenways Road,
Chennai-600 028.
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Order dated 07.09.2022
in W.P.No.40669 of 2005
S.VAIDYANATHAN, J
and
C.SARAVANAN, J
cs
W.P.No.40669 of 2005
07.09.2022
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