Heard Mr.V.Sundareswaran, learned counsel appearing for the petitioner and Mr.S.Kanmani Annamalai, learned Additional Government Pleader appearing for the respondents.
2. The petitioner, who is a registered dealer on the file of the third respondent, is aggrieved by an order passed by the first respondent, dated 22.03.2006, which is an order dismissing the petitioner's revision petition filed against the order passed by the Deputy Commissioner (CT), Chennai Central in R.P.No.63 of 2000, dated 03.11.2005.
3. By dismissing the petitioner's second revision petition, the first respondent has affirmed the order passed by the Deputy Commissioner, dated 03.11.2004, by which the Deputy Commissioner remanded the matter back to the Assessing Officer for fresh disposal to levy the penal interest under Section 24(3) on the basis of the decision of the Hon'ble Supreme Court.
4. The case has had a chequered history commencing with a revision notice issued by the third respondent, dated 13.03.2000, for the assessment year 1993-94, alleging that the petitioner has not reported the sales turnover of REP licence and the transaction is liable to be taxed at 8 %. The petitioner submitted their objections, dated 29.03.2000, requesting for grant of further time to file detailed objections and clearly stating that they are not traders in licence, but they purchased the licence for their own use to import materials in view of import duty and sell, if any, it is advantageous on the own licence issued in their name by the JDGFT. Though, such objection was raised by the petitioner, the Assessing Officer passed an order on 31.03.2000. That was based on a revised return which was filed by the petitioner admitting the turnover.
5. It is not known as to under what circumstances, a revised return was accepted when the assessment had attained the finality. After the revised return was accepted and assessment made, a notice was issued dated 30.08.2000, demanding interest. In the mean time, the petitioner had approached the Tamil Nadu Taxation Special Tribunal in O.P.No.1273 of 2000, challenging the revised assessment order, dated 31.03.2000. The petition was allowed by the Special Tribunal with a direction to the Assessing Officer to issue notice to the parties to whom the petitioner had sold the REP licence and after which to pass fresh orders. It appears that without resorting to such procedure, assessment order has been passed on 09.11.2000. This was challenged by filing the appeal, which was dismissed and a Writ Petition was filed challenging the said order, which was also dismissed and the matter is now pending before the Hon'ble Division Bench in W.A.No.1367 of 2007. Thus, the validity of the assessment order as passed by the Assessing Officer, dated 09.11.2000 is yet to attain a finality. In the instant case, what is challenged is an order demanding interest under Section 24(3) of the TNGST Act. The petitioner's contention is that the elements, which are required to attract interest under Section 24(3) of the Act, are not attracted to the petitioner's case and the legal position as to whether such transactions are taxable, was in a nebulous state, till the Hon'ble Supreme Court decided the same and held that the transactions are exigible to tax from 01.05.1996 and considering all these factors as well as the factor that the Assessing Officer failed to follow the directions issued by the Special Tribunal in O.P.No.1273 of 2000, dated 29.09.2000, it is a fit case, where the demand for interest has to be set aside.
6. When I perused the order passed by the first revisional authority namely, the Deputy Commissioner (CT), Chennai, dated 03.11.2004, it appears that the said Officer has not approached the matter in a proper manner, as while setting aside the order of the Assessing Officer and remanding the matter for fresh consideration, virtually issued a positive direction to the Assessing Authority to levy penal interest under Section 24(3) of the TNGST Act.
7. In my considered view, when the matter is to be remanded for being considered afresh, it would be in the fitness of things to remand the matter in its entirety, especially in the light of the fact that judgment of the Hon'ble Supreme Court holding that such transactions are taxable was only with effect from 01.05.1996, onwards and the present assessment year is 1993-94, the first revisional authority ought to have made an open remand by directing the Assessing Officer to consider all the points.
8. It is submitted by the learned Additional Government Pleader that the petitioner having filed a revised return, dated 31.03.2000 and also paid the tax, cannot contend that interest is not leviable. It is further submitted that in terms of Section 14(1) of the TNGST Act, any dealer assessed under Section 12(2) may within a period of 30 days from the date of service of the assessment order apply to the Assessing Officer for reassessment and such application shall be entertained, only if there is satisfactory proof of payment of tax.
9. In my considered view, Section 14 of the TNGST Act, would have no application to the facts of this case, as the revised return dated 31.03.2000, is not within the period of five years from the date of the original assessment, which is dated 30.09.1994. Though Section 14 speaks of re-assessment still there is an embargo on the part of the Assessing Officer to invoke Section 14 of the TNGST Act and obviously such power could not have been invoked in the instant case.
10. Thus, for all the above reasons, this Court is of the view that the matter should be remanded for fresh consideration to the third respondent, the Assessing Officer. Accordingly, the Writ Petition is allowed and the impugned order is set aside. Consequently, the order passed by the Deputy Commissioner (CT), Chennai Central, dated 03.11.2004, in R.P.No.63 of 2000, is set aside and the matter is remanded to the Assessing Officer for fresh consideration in accordance with law. No costs. Consequently, connected Miscellaneous Petition is closed.