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Madras High CourtWP/13262/2016disposed of

Tvl. Ess Gee Caterers, v. The Assistant Commissioner(Ct)

2016-06-28Honourable Mr Justice T. S. Sivagnanam3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 28.06.2016

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.13262 of 2016 & W.M.P.No.11645 of 2016 Tvl.Ess Gee Caterers rep. By its Proprietor R.A.Puram, Chennai 28.

[ PETITIONER ] Vs The Assistant Commissioner (CT) Manali Assessment Circle 5/79, 5th Block I Cross street Kaviyarasu Kannadasan Nagar Kodungaiyur, Chennai 118.

[ RESPONDENT ] PRAYER:

Petition filed under Article 226 of The Constitution of India praying for issuance of writ of certiorarified mandamus to call for the records of the respondent in TNGST 155112/1991-92 TO 1994-95 dated 25.06.2015 and quash the same as illegal and unconstitutional and further direct the respondent to refund the appropriate amount to be calculated including the interest quotient in accordance with law.

For Petitioner : Mr.A.Ravichandran For Respondents : Mr.Manokaran Sundaram Addl.Government Pleader **********

O R D E R

Heard Mr.A.Ravichandran, learned Counsel appearing for the petitioner and Mr.Manokaran Sundaram, learned Additional Government Pleader appearing on behalf of the respondent and with the consent of learned counsel appearing on either side, the writ petition is taken up for final disposal. 2.The petitioner has filed this writ petition praying for issuance of a writ of certiorarified mandamus to quash the order passed by the respondent dated 25.6.2015, by which, a revised

order was passed by the respondent for the financial years 199192 to 1994-95, under the provisions of the Tamil Nadu General Sales Tax Act.

3.I have elaborately heard the submissions made by the learned counsels for the parties.

4.The case of the petitioner is that the respondent ought to have taken into consideration that the Application under the Samadhan Scheme was rejected by the Deputy Commissioner (CT) vide proceedings in SR 283/2002. However, the amount which has been collected from the petitioner viz. Rs.7,27,401/- has not been refunded to the petitioner. Further, it is stated that the Second Appeal preferred before the Sales Tax Appellate Tribunal in T.A.Nos.950 and 951 of 2002 were allowed and the matter was remanded to the Assessing Officer to redo the assessment in terms of the Judgment in the case of TISCO v. STATE OF BIHAR [126 STC 547]. It is submitted that the respondent has passed the revised orders dated 31.7.

2009, by giving effect to the orders passed by the Appellate Tribunal and revising the assessment and levying tax only on the value of coupons. Therefore, it is the contention of the petitioner that the respondent erroneously held that the amount of Rs.7,27,401/- was not collected as an advance or in any contravention of the demands to attract any interest from the Government and hence the claim on interest is not justified.

5.Further, it is contended that the respondent ought to have considered the fact that the petitioner has already remitted a sum of Rs.7,27,401/- under Samadhan Scheme as against the tax due demand of Rs.2,19,610/- raised in the revised assessment order and therefore the petitioner is entitled for refund. 6.In my view, the issue pertains to refund of money paid by the petitioner to avail the benefit of Samadhan Scheme. Since the issue as to whether adjustment could be made or not, are all factual issues and those complicated factual issues cannot adjudicated in a Writ Petition.

Therefore, considering the facts and circumstances of the case, this Court is of the view that the petitioner should be directed to file a Revision before the concerned Joint Commissioner of Commercial Taxes, challenging the impugned order, who would be in a position to consider all the disputed questions of fact and also the calculations which the petitioner has furnished. 7.Though the petitioner has submitted a detailed representation, after which the impugned order dated 25.06.2015 has been passed, the petitioner has to necessarily challenge the correctness of the order before the Revisional Authority.

8.Accordingly, the Writ Petition is disposed of by giving liberty to the petitioner to file a Revision Petition against the impugned proceedings and if such Revision Petition is filed within a period of thirty days from the date of receipt of a copy of this order, the Revisional Authority shall entertain the Revision Petition, hear the petitioner in person and pass a speaking order on merits and in accordance with law. No costs. Consequently, connected Miscellaneous Petition is closed. s/d- Assistant Registrar(CS-III) True Copy Sub-Assistant Registrar r p a To 1.The Assistant Commissioner (CT) Manali Assessment Circle 5/79, 5th Block I Cross street Kaviyarasu Kannadasan Nagar Kodungaiyur Chennai 118.

2. The Joint Commissioner of Commercial Taxes, Madras (Central) Division, Chennai 6.

+ 1 cc to Spl. Govt.Pleader (Taxes) SR 36204 ca(co) prk15/7 W.P.No.13262 of 2016