TaxTMI 
TaxTMI 
TaxTMI 
2007 (8) TMI 685
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..... 1,91,03,488 and under the Tamil Nadu Additional Sales Tax Act, 1970 at Rs. 1,16,89,193. Out of the above said amounts, the petitioner has already paid tax to an extent of Rs. 33,19,61,522 and additional tax to an extent of Rs. 5,23,58,574 and that the balance of tax and additional tax due to be paid were Rs. 3,82,06,975 and Rs. 1,55,85,591, respectively. It is the case of the petitioner that they have already paid Rs. 3,29,47,570 towards tax amount and Rs. 37,68,265 towards additional tax amount, in addition to the amounts shown as paid in the assessment order. Therefore, the petitioner filed rectification petition under section 55 of the TNGST Act on May 16, 2007 to rectify the error apparent on the face of the record, which had crept in due to non-consideration of the tax and additional tax paid by them. After taking into consideration the tax and additional tax paid by the petitioner, the assessing authority passed the rectification order on May 17, 2007, stating that out of the total tax assessed by the assessing authority at Rs. 37,01,68,497, the petitioner had already remitted Rs. 36,49,09,092 and that the balance amount of tax due and payable was only Rs. 52,59,405. The r....
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....nd 100 per cent payment of admitted tax as a pre-requisite condition for entertaining an appeal. For the above said reasons, the assessing officer held that the stay order granted by the appellate authority is illegal and directed the petitioner to make entire payment, failing which, appropriate action would be initiated in accordance with law. Being aggrieved by the order of the first respondent dated July, 30, 2007, the petitioner has filed the present writ petition seeking for a writ of certiorari, to quash the impugned notice in RC 0620015/99/2000 dated July 30, 2007 on the file of the first respondent. Learned counsel for the petitioner submitted that the first respondent, who is the assessing officer has no authority under law to thwart a wellconsidered stay order passed by the Appellate Assistant Commissioner, CT VI, Chennai. Relying on the decision in Ragam Polymers v. Commercial Tax Officer reported in W.P. No. 36581 of 2005 dated February 22, 2007(1), she submitted that the powers of discretion conferred on the Appellate Assistant Commissioner under section 31(5) of the TNGST Act, cannot be interfered with in any manner except by way of further appeal. She further submit....
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....only be undue harassment to assessees and chaos in administration of tax laws. 7.. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this regard. Under sub-section (1), where the Central Board of Excise and Customs (Direct Taxes) comes across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfied, it can direct the Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under sub-section (2) the Collector of Central Excise, when he comes across any order passed by an authority subordinate to him, if not satisfied with its legality or propriety, may direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the depart....
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....ion or review'. According to Wharton's Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court, in consonance with this particular meaning of appeal, 'appellate jurisdiction' means 'the power of a superior court to review the decision of an inferior court.' Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decision of the latter. This has been well put by story: 'The essential criterion of "appellate jurisdiction" is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial Tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon, by some other court, whose judgment or proceedings are to be revised," (section 1761, Commentaries on the Constitution of the United States). .'. " Following the above judgments, this court in Ragam Polymers v. Commercial Tax Officer reported in W.P. No. 36581 of 2....