2017 (8) TMI 87 - HC - VAT and Sales Tax

Court sets aside Appellate Commissioner's order, remands for fresh consideration.

The court allowed W.P.No.6990 of 2004, setting aside the order of the Appellate Assistant Commissioner and remanding the matter for fresh consideration. ... Validity of assessment order - The petitioner's contention was that the order passed under Section 55 of the Act merged with the order of assessment - Held that: - similar issue decided in the case of P.C.W. Castings Private Ltd. Versus The Assistant Commissioner (CT) , The Appellate Deputy Commissioner (CT) [2016 (12) TMI 314 - MADRAS HIGH COURT], where it was held that as against the order of rectification passed, resulting in the modification of the original order, there was a right of appeal before the Appellate Commissioner. The impugned order passed by the Appellate Assistant Commissioner calls for interference - matter is remanded to the Appellate Assistant Commissioner for fresh consideration. Issues:Challenge to assessment order under Central Sales Tax Act for the year 1998-1999; Appeal against order of rectification under Section 55 of the Act; Maintainability of appeal before Appellate Authority.Analysis:The petitioner, a registered dealer under the Tamil Nadu General Sales Tax Act, challenged the assessment order dated 13.08.2001, and the appellate authority's order dated 14.11.2003, related to the assessment under the Central Sales Tax Act for the year 1998-1999. The petitioner filed a writ petition challenging the appellate authority's dismissal of the appeal on technical grounds. The petitioner contended that the order passed under Section 55 of the Act merged with the assessment order, making it sufficient to challenge the assessment order. However, the appellate authority rejected this argument, stating that the assessment order remained unassailed. To address technical objections, the petitioner filed a separate writ petition challenging the assessment order (W.P.No.6989 of 2004).In a similar case involving P.C.W.Castings Private Ltd., it was held that there was a right of appeal before the Appellate Commissioner against an order of rectification that modified the original order. The Appellate Authority's focus should be on the correctness of the order passed by the Assessing Officer, not on actions initiated by the revenue. The order passed by the Assessing Officer under Section 84 of the TNVAT Act merged with the assessment order, making the appeal entertainable. Citing previous decisions, the court emphasized the distinction between orders allowing rectification and those rejecting it, stating that appeal remedy lies when rectification results in modifying the original assessment order.The court allowed W.P.No.6990 of 2004, setting aside the order of the Appellate Assistant Commissioner and remanding the matter for fresh consideration. The Appellate Assistant Commissioner was directed to consider the validity of the assessment order and the order under Section 55 of the Act, provide a personal hearing to the petitioner, and pass a speaking order on merits and in accordance with the law. Consequently, W.P.No.6989 of 2004 was closed, with the remaining tax and penalty stayed until the appeal's disposal by the Appellate Commissioner.