TaxTMI 
TaxTMI 
2010 (12) TMI 1098
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....not extend such subsidy facility to the petitioner. Instead, the Government issued G.O. Ms. No. 989, dated September 1, 1988, under which the Government introduced a deferral scheme, i.e., the subsidy was done away with and instead, there was a tax deferral for four years. The said Government order was extended even to the private mills. To put it precisely, the benefit of the subsidy extended even to the private mills as per G.O. Ms. No. 1294, dated October 24, 1975 and G.O. Ms. No. 268, Industries (MID.I) Department, dated April 16, 1987, were done away with. The petitioner was aggrieved by G.O. Ms. No. 989, dated September 1, 1988. Therefore, the petitioner challenged the said Government order on several grounds including on the ground of legitimate expectation. When the said writ petition was pending, provisional demands were made and consequently, recovery proceedings were also initiated. The petitioner challenged the same by filing writ petitions in W.P. Nos. 4685 and 4686 of 1993. These two writ petitions were subsequently transferred to Taxation Appellate Tribunal and they were tried as original petitions and they were dismissed. Challenging the same, the petitioner file....
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....ion (1) of section 6 shall, by an order, settle the dispute and issue a certificate in such form as may be prescribed, and thereupon the applicant shall be discharged from his liability to make payment of the balance amount of such arrear of tax, penalty or interest. Separate certificate shall be issued in respect of each application. (2) The designated authority may, for reasons to be recorded in writing, refuse to settle a dispute: Provided that no order under this sub-section shall be passed without giving the applicant a reasonable opportunity of showing cause against such refusal. (3) The authority notified by the Government in this behalf may, at any time within ninety days from the date of issue of certificate under sub-section (1) by the designated authority, modify the certificate by rectifying any error apparent of the face of the record: Provided that no such rectification adversely affecting the applicant shall be passed without allowing the applicant a reasonable opportunity of showing cause against such rectification." For requesting for settlement of dispute, the assessee is required to make an application under section 5 of the Act in form I as per ru....
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....appeals in respect of nine assessment orders from 1988 to 1996 were all pending before the Sales Tax Appellate Tribunal, the petitioner made nine individual applications in form I requesting for settlement of disputes involved in such appeals. The application was made in form I in each case. Having considered all the above, the designated authority, viz., the second respondent herein, issued certificate of settlement in form IV on May 9, 2003. Accordingly, the petitioner made payment of tax as per the said settlement in all the matters. While so, the second respondent, viz., the designated authority issued notice on April 26, 2005 in all the cases, calling upon the petitioner to show cause as to why the certificates should not be revoked under section 12 of the Act. It was alleged in the said show-cause notices that the issues were erroneously settled under section 8 of the Tamil Nadu Sales Tax (Settlement of Disputes) Act of 2002, because (i) the purchase tax exemption had been decided by the High Court in Dharani Sugars and Chemicals Ltd. v. Commercial Tax Officer, Sankaran Kovil [2002] 128 STC 554 (Mad) by judgment dated November 27, 2001; the exemption claimed on the taxliab....
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....espondent, in paragraph No. 4, it has been stated as follows: "4. It is respectfully submitted that the issue relating to levy of tax on the purchase of cane was already decided by the honourable Tamil Nadu Taxation Special Tribunal, Chennai in TP. Nos. 77, 78, 1223 and 612/98 dated June 11, 1999 by way of dismissing the original petitions holding that the petitioners were not eligible for waiver (decision Dharani Sugars & Chemicals Ltd. v. Deputy Commercial Tax Officer reported in [1999] 115 STC 370 (TNTST)). The review petition filed by the petitioners before the honourable High Court of Madras in W.P. No. 1141 of 1999 was also dismissed by the court on November 27, 2001 (Dharani Sugars and Chemicals Ltd. v. Commercial Tax Officer, Sankaran Kovil [2002] 128 STC 554 (Mad)). Again, the subsidy issue was also decided by the honourable Supreme Court of India on December 17, 1999 in the case of E.I.D. Parry (I) Ltd., Chennai v. Assistant Commissioner of Commercial Taxes reported in [2000] 117 STC 457. So, the issues relating to levy of tax on the purchase value of sugarcane and subsidies could not be disputed by the petitioners in the appeal petition pending before the Sales Tax Ap....
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.... appellate court before whom the appeal is filed to determine and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the court. The said judgment came up for consideration by the honourable Supreme Court in Tirupati Balaji Developers (P) Ltd. v. State of Bihar reported in [2004] 5 SCC 1, in which also, the honourable Supreme Court has held that an appeal does not cease to be an appeal though irregular and incompetent. These two judgments again came to be considered by the honourable Supreme Court in Commissioner of Income-tax v. Shatrusailya Digvijaysingh Jadeja reported in [2005] 277 ITR 435. In that case, the honourable Supreme Court, while approving the view taken in Raja Kulkarni AIR 1954 SC 73 and Tirupati Balaji Developers (P) Ltd.'s case [2004] 5 SCC 1, has held in paragraph Nos. 11 and 12, as follows (page 451 of 277 ITR): "11. The basic point ....
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....erein the term "fraud" came to be considered by the honourable Supreme Court. In the said judgment, the honourable Supreme Court has held in paragraph No. 20 as follows: "20. . . . From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. . ." After having considered certain decisions, on this aspects in the very same paragraph, the honourable Supreme Court has further held as follows: ". . . It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. . ." In the very same paragraph, the honourable Supreme Court further went on to say as follows: ". . . It is not misrepresentation under section 21 to state that the premises shall be needed by the ....
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.... the State Representative and thereupon the provisions of regulation 7(5) below shall apply. (3) If the Secretary finds that the appeal does not conform to the requirements of the Act, the rules and these regulations, he shall call upon the party by a notice in form A in the schedule to these regulations to remedy the defect or defects within a reasonable period to be specified by him. The Secretary may for sufficient cause extend the period. If the defects are remedied within the period allowed, the Secretary shall cause the appeal to be registered. (4) When an appeal is re-presented without remedying the defects either within the period allowed or after the period allowed and where in the opinion of the Secretary it is considered that before admitting an appeal it is necessary to have the matter decided by the Tribunal, he shall make a report to that effect to the Chairman who may either reject the appeal or fix a date for hearing the matter and give due notice of such hearing to the party and the State Representative in form B in the Schedule: Provided that where an appeal is re-presented after the period allowed it shall be accompanied by a petition supported by an aff....
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....on presenting has got authority to do so and that it conforms to the provisions of the Act, the rules and these regulations, on recording the satisfaction of the Secretary, the appeal shall be registered. In all these cases, the appeals were registered by the Secretary, because the appeals made out prima facie cases and also they conform to regulation 7(1) of the Regulation, Act, Rules, etc. When once the appeals have been admitted, as I have already stated, it is only for the Tribunal ultimately to decide whether these appeals are maintainable and whether these appeals are liable to be allowed or dismissed. It is not for the designated authority under this Act to give any finding as to whether the appeals are maintainable or not. Such finding by the designated authority is completely without jurisdiction. Apart from that, if any such finding is allowed to be given, the same will run counter to the decision of the statutory authority, viz., the Secretary of the Appellate Tribunal, who has got power to register an appeal on getting satisfied that it conforms to the provisions of the Act, Rules and it also make out a prima facie case. As it could be seen in the other sub-clauses of r....