TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 1165
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....his juncture, is on account of the fact that, such order was not intimated to the petitioner, and only when the petitioner received a notice from the second respondent, dated 18.09.2017, demanding tax, interest and penalty for the year 1992-1993 under TNGST Act, they came to know that their application filed under Samadhan Scheme has been rejected. Thereafter, the petitioner approached the first respondent, and gave a letter, stating that, they have not been communicated with the impugned order; on direction issued, they filed application for issuance of the certified copy of the impugned order; and after obtaining the same, challenged the said order by way of this Writ Petition. One more reason assigned by the petitioner is that, in respect of the petitioner's Sister Concern, viz., M/s.Nippon Enterprises (South), similar order was passed by the first respondent, rejecting the application for settlement, assigning very same reason. Challenging the said orders, the said Sister Concern filed W.P.Nos.24198 & 24199 of 2014, and the Writ Petitions were allowed by this Court, by order, dated 30.04.2015. Therefore, it is submitted that, had the petitioner been communicated the impugne....
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....ssment has been made prior to 01.08.2011 under the relevant Act and pending collection on the date of filing of application under the Settlement Act. 20. It is not in dispute that the first respondent is the designated authority under the provisions of the Act and appointed by the Government under Section 3. The persons, who are eligible for settlement under the Act has to fulfill the conditions under Section 4 and in this case it is not in dispute that the petitioner was entitled to avail the provisions of the Settlement Act. The procedure for filing an application has been spelt out in Section 5 of the Act. Section 6 deals with determination of amount payable by the applicant and Section 7 deals with rate applicable in determining amount payable and they are as follows: ''5. Application for settlement.- (1) An application for the purpose of section 4 shall be made to the designated authority by an applicant within six months from the date of commencement of this Act or by such later date as the Government may, by notification, specify, from time to time, in such form, and in such manner, as may be prescribed, with proof of payment of the amount payable at the rates ....
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....pending collection on the date of application along with interest at seven and a half per cent per annum thereon and on such payment of tax, the balance of tax and interest and the entire penalty shall be waived. (c) Where it relates to arrears of tax, which was admitted as tax due as per returns filed for the year with corresponding arrears of penalty and interest, the applicant shall pay the entire arrears of tax pending collection along with interest at seven and a half per cent. per annum and on such payment, the balance of interest and the entire penalty shall be waived. (d) Where it relates to arrears of penalty or interest or both and where there is no corresponding arrears of tax pending collection on the date of application, the applicant shall pay ten per cent of the penalty and twenty five per cent of interest, the balance of penalty and interest shall be waived? 21. In terms of the above provisions, the applications shall be presented within six months from the date of commencement of the Act in the form prescribed with proof of payment of the amount payable at the rates specified in Section 7. Section 7 contains four clauses. Clause (a) deals with the cases relat....
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....3) of Section 6. Thus, the Act being a Settlement Act to give reprieve to the dealer/applicant and bring him out of the misery has first thrown the onus on the dealer/applicant and he has a statutory duty to compute the rate applicable in accordance with Section 7 of the Act, by considering all the relevant records. If the dealer/applicant properly computes the amount and remits the same and encloses proof of such payment along with the application under Section 5, the same will be taken for verification and if the designated authority, on going through the relevant records, finds that further amount is payable and if the same fall short of not more than 10% grant relief to the dealer and if not the application stands summarily rejected. Therefore, the Act operates on strict limits as clearly defined under the Statute. The onus is not only on the dealer to carefully peruse all his records and relevant documents while determining the rate payable by him, but also on the assessing officer while verifying the application as to the correctness of the particulars furnished exercising power, under Section 6(1) by taking into consideration relevant records and then determine the amount pa....
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....e respondents for rejection of the applications filed in Form-I under Sub Section (1) of Section 5 of the Act, 2010 by the petitioner under Samadhan scheme, for settlement of arrears pertaining to the assessment year 1991-92 and 1992-93, is that since the department has filed appeals against the portion of allowing the appeals in A.P.Nos.84 and 85 of 2009 dated 16.2.2010 filed by the petitioner by the Appellate Deputy Commissioner (CT) IV, Chennai before the Tribunal in S.T.A.Nos.30 and 84 and the said appeals are pending for adjudication and no finality was reached as on the date of presentation of the applications by the petitioner under Samadhan scheme and the said scheme is applicable only to settled demand and if any assessment or appeal proceedings are pending, then the demand as per the original order, i.e. assessment order, dated 30.10.2009 has to be taken as the basic demand for calculation of samadhan payment and since the petitioner had only remitted Rs. 5,33,369/- and Rs. 2,34,513/- along with Samadhan scheme application, which are below 90% of the tax payable under the scheme together with interest and hence, it has been held by the first respondent that the applicatio....
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....ule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 13. In this case, it is not in dispute that as against the orders of the Appellate Deputy Commissioner, both the petitioner and the Government have preferred their appeals and since they are pending, as rightly contended by the respondents, the said appeals cannot be construed as withdrawn, however, for this reason, it is not justified to contend that since the appeals are pending before the Tribunal and the said proceedings have not reached a finality, the demand as per the original order has to be taken as the basic demand for consideration for the applications under Samadhan Scheme. In such view of the matter, this Court is of the view that the impugned orders are liable to be set aside. However, this Court makes it explicit that this order would not have any bearing on the appeal proceedings pending before the Tribunal and the respondents are always at liberty to proceed afresh if they succeed in the appeals. For the foregoing reasons, the Writ Petitions are allowed and the impugned orders are hereby set aside. The first respondent is directed to entertain the....