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R. Baluswami Chettiar Vs. the Appellate Assistant Commissioner (Ct) and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberW.A. No. 246 of 1981 against W.P. No. 6383 of 1980
Judge
Reported in[1983]52STC294(Mad)
AppellantR. Baluswami Chettiar
RespondentThe Appellate Assistant Commissioner (Ct) and anr.
Appellant AdvocateS. Doraisamy, Adv.
Respondent AdvocateK.S. Bakthavatsalam, Additional Government Pleader No. I
DispositionAppeal allowed
Excerpt:
.....refers to an order passed under section 14. since the refusal to reassess can only be an order made under section 14, an appeal will definitely lie under section 31. 7. in this view of the matter, we allow the writ appeal as well as the writ petition and quash the order passed by the appellate assistant commissioner (commercial taxes), pollachi, dated 1.....be a subject-matter of appeal under section 31, for section 31 specifically refers to an order passed under section 14. since the refusal to reassess can only be an order made under section 14, an appeal will definitely lie under section 31.7. in this view of the matter, we allow the writ appeal as well as the writ petition and quash the order passed by the appellate assistant commissioner (commercial taxes), pollachi, dated 15th may, 1980, with direction to him to entertain the appellant's appeal under section 31 and dispose of the same on merits.no costs.
Judgment:

G. Ramanujam, J.

1. This is an appeal filed by the appellant against the order of Mohan, J., in Writ Petition No. 6383 of 1980, dismissing the case in limine.

2. The appellant herein reported a total taxable turnover of Rs. 12,54,768.27 in the A-2 returns for the assessment year 1977-78. However, they did not produce the accounts for final check in spite of notices. Therefore, a notice to assess to the best of judgment on a taxable turnover of Rs. 18,82,152.00 was issued to the appellant. The assessee neither filed objections nor produced accounts. They applied for time for adjournment on the ground that the connected records are not ready due to illness of the auditor. On the ground that the appellant is dragging on the production of the accounts, the adjournment sought for by the appellant was refused and he was assessed on a best judgment basis on a total taxable turnover of Rs. 18,82,152.00 under the Tamil Nadu General Sales Tax Act by an order dated 19th February, 1979. The appellant thereafter filed a petition under Section 14 of the said Act on 16th March, 1979, to revise the assessment. He also filed a return along with a petition for reassessment in form A-1. The appellant was asked to produce the accounts for 1977-78 but the appellant applied for adjournments. The assessee finally appeared on 25th October, 1979, and produced the accounts only partly. On the ground that all the records had not been produced the matter was adjourned ultimately to 18th January, 1980, and as the appellant neither appeared nor made any representation his petition under Section 14 was rejected and the best of judgment assessment made on 19th February, 1979, was confirmed. The appellant then filed an appeal before the Appellate Assistant Commissioner against the rejection of his petition under Section 14 of the Act. The said appeal has been returned as not entertainable by him.

3. Aggrieved by the rejection of his appeal by the Appellate Assistant Commissioner as not maintainable, the appellant filed Writ Petition No. 6383 of 1980 before this Court for issue of a writ of certiorarified mandamus to quash the order dated 15th May, 1980, of the first respondent and directing him to entertain the appeal. The said writ petition was dismissed by Mohan, J., at the admission stage on the ground that a revision lies under Section 33 of the Tamil Nadu General Sales Tax Act, as against the original best of judgment assessment and therefore when such an alternative statutory remedy is available, the writ jurisdiction cannot be invoked.

4. The correctness of the said decision has been canvassed in this appeal. Since the writ petition was dismissed at the admission stage, the respondents had no opportunity to file any counter and therefore they have now filed a counter-affidavit at the appellate stage. In the counter-affidavit it has been stated that an appeal will not lie under Section 31 of the Act on the facts of this case, as the appellant's petition was returned on the ground that no fresh assessment order was passed under Section 14 of the Act. Under Section 14 of the Act the cancellation of the earlier assessment and a fresh assessment on the basis of the -return submitted is contemplated and hence the order dismissing the application under Section 14 and confirming the original order of assessment cannot be taken to be an order under Section 14 which is appealable under Section 31 of the Act. It has also been stated in the counter-affidavit that it is open to the assessee to move the Deputy Commissioner under Section 33 of the Act or to file an appeal to the Appellate Assistant Commissioner under Section 31 against the original best of judgment assessment order passed under Section 12. In view of those two statutory remedies the petitioner cannot file an appeal under Section 31 as against the order passed by the assessing authority rejecting his application under Section 14.

5. On the facts and circumstances of this case we are of the view that an appeal will lie to the Appellate Assistant Commissioner under Section 31(1) of the Act, which reads as follows :

Any person objecting to an order passed by the appropriate authority under Section 4-A, Section 12, Section 14, Section 15, Sub-sections (1) and (2) of Section 16, Section 18, Section 23, Section 27, Sub-section (4) of Section 41 or Sub-section (3) of Section 42, may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner.

6. According to this section, any order passed under Section 14 is made appealable. In this case, though there was a best of judgment assessment under Section 12, which is an appealable order under Section 31, he did not file an appeal but preferred to file a petition under Section 14 for reassessment. That petition for reassessment was pending before the assessing authority, but was ultimately rejected on some ground. The rejection of the petition under Section 14 has to be taken as an order passed under Section 14. Merely because the assessing authority has chosen to confirm his original best of judgment assessment made under Section 12, the rejection of the petitioner's application under Section 14 cannot be said to be an order under Section 12. The rejection of application under Section 14 can only be an order made under Section 14. An application under Section 14 may either result in reassessment or in the confirmation of the original assessment. In either case the order passed is appealable under Section 31. The view taken by the Appellate Assistant Commissioner that only in a case where the assessing authority actually modifies the original order of assessment by way of reassessment, the appeal will lie under Section 31 cannot legally be sustained. The learned Judge has stated that since a revision lies against the original order of assessment to the Deputy Commissioner under Section 33, which is an alternative remedy available to the petitioner, the writ petition cannot be entertained. We do not see how a revision to the Deputy Commissioner will lie against the original order of assessment made under Section 12, when there is an appeal provided under Section 31. It is no doubt true, as pointed out in the counter-affidavit, that as against the original assessment an appeal will lie to the Appellate Assistant Commissioner under Section 31. Having regard to the fact that the appellant instead of filing an appeal took the alternative remedy by way of a petition under Section 14 for reassessment the rejection of his request for reassessment can be a subject-matter of appeal under Section 31, for Section 31 specifically refers to an order passed under Section 14. Since the refusal to reassess can only be an order made under Section 14, an appeal will definitely lie under Section 31.

7. In this view of the matter, we allow the writ appeal as well as the writ petition and quash the order passed by the Appellate Assistant Commissioner (Commercial Taxes), Pollachi, dated 15th May, 1980, with direction to him to entertain the appellant's appeal under Section 31 and dispose of the same on merits.

No costs.


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