M/S.Sulochana Cotton Spinning v. The Appellate Deputy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.06.2015 Coram:

THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.17531 of 2015 M/s.Sulochana Cotton Spinning Mills (P) Ltd. [ Petitioner ] Rep by S.Krishna Kumar Managing Director Palladam Road Tirupur Vs 1 The Appellate Deputy Commissioner (CT) CT Buildings Palghat Road Pollachi 2 The Assistant Commissioner (CT) Tirupur (South) Assessment Circle Tirupur [ Respondents] PRAYER: Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records on the files of the 1st respondent in S.P. No.09/15 in A.P. VAT. No.21/15 dt 23.4.2015 relating to the year 2013-14 and quash the same as being invalid and illegal in so far as the said order directs the petitioners to file bank guarantee or immovable property for the balance of amounts and further directing and permitting the petitioners to file a personal bond for the balance of tax and penalty.

For Petitioner : Mr.C.Venkataraman For Respondents : Mr.S.Kanmani Annamalai Additional Government Pleader(Taxes)

O R D E R

With the consent of both sides, the Writ Petition itself is taken up for final disposal. Mr.S.Kanmani Annamalai, learned Government Advocate (Taxes), takes notice for the respondents. 2.

The relevant assessment year is 2013-2014. The Assessing Officer, the above mentioned second respondent, has completed the assessment. Aggrieved by that, the petitioner has preferred appeal before the Appellate Authority, the above mentioned first respondent.

Along with the appeal, the petitioner has also filed the stay petition. The first respondent has passed the order in stay petition in S.P.No.09 of 2015 with the following conditions:- "S.P.No.09/2015 (i)Considering the facts represented by the Authorized representative, the petitioner is directed to pay Rs.10,32,600/- before the assessing authority, in two equal monthly installment.

Due date Amount (Rs) 1st Installment 22.5.2015 5,16,300/- 2nd Installment 22.6.2015 5,16,200/- ii) The remaining tax amount of Rs.30,97,749/- and penalty Rs.55,07,132/- in full is ordered to be stayed.

(iii) The petitioner shall file sufficient and legally acceptable security either in Form HH or G ((Indemnity Bond for mortgage of immovable property or Bank Guarantee) for the amount covered in Clause (ii) above, before the assessing authority on or before 22.06.2015.

(iv) The stay is valid for one hundred and eighty days from the date of this order or till the disposal of the connected main appeal, whichever is earlier".

3.

In respect of the above conditions, the learned Counsel for the petitioner fairly stated that the petitioner had already paid both the installments, but, in so far as the condition of filing the Indemnity Bond for mortgage of immovable property or Bank Guarantee for the remaining balance of tax and penalty is concerned, he stated that the said condition is onerous and due to financial constraints, the petitioner could not comply with the said direction of the Appellate Authority.

4. Section 42(2) clearly says that any tax assessed on or has become payable or any other amount due under this Act from a dealer or person shall be subject to the claim of the Government in respect of land revenue. As the above section provides an automatic charge as security towards any arrears of tax, in view of the fact that the petitioner has accepted the direction to pay Rs.10,32,600/- in two

equated monthly instalments, the further direction to file bank guarantee as security for the balance of tax and penalty needs to be modified.

5. Therefore, in view of the above, this Court is inclined to modify the second condition of the appellate authority. Accordingly, in lieu of executing the Indemnity Bond for mortgage of immovable property or Bank Guarantee, this Court directs the petitioner to execute personal bond for the remaining balance of Rs.86,04,881/- (tax and penalty) within a period of two weeks from the date of receipt of a copy of this order.

With the above observations, this Writ Petition is disposed of. No costs.

Sd/- Assistant Registrar True Copy Sub Assistant Registrar rg To 1 The Appellate Deputy Commissioner (CT) CT Buildings Palghat Road Pollachi 2 The Assistant Commissioner (CT) Tirupur (South) Assessment Circle Tirupur 1 cc to Special Government Pleader.Sr.No.30300 1 cc to Mr. C.Venkataraman, Advocate Sr.No.30041 W.P.No.17531 of 2015 ug(co) pmk.16.7.2015