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2007 DIGILAW 1249 (MAD)

SOUTH INDIA CORPORATION LTD. v. COMMERCIAL TAX OFFICER.

2007-04-09

K.RAVIRAJA PANDIAN

body2007
ORDER K. RAVIRAJA PANDIAN J. - O.P. No. 766 of 2003 was filed before the Tamil Nadu Taxation Special Tribunal praying to call for the records on the files of the second respondent in C.T.R.A. No. 2 of 2002 dated March 18, 2003, quash the same, while directing the second respondent to rectify its proceedings in C.T.A. No. 160 of 2002 dated May 20, 2002 and set aside the imposition of surcharge and additional surcharge imposed on the tax paid under section 7C of the Tamil Nadu General Sales Tax Act, 1959 and penalty imposed in TNGST No. 307515/94-95 dated November 30, 2001. O.P. No. 772 of 2003 was filed before the Tamil Nadu Taxation Special Tribunal praying to call for the records on the file of the second respondent in C.T.A. No. 160 of 2002 dated May 20, 2002 in so far as it has confirmed the imposition by the first respondent herein by his proceedings in TNGST No. 307515/94-95 dated November 30, 2001, of surcharge and additional surcharge on the tax paid under section 7C of the TNGST Act, 1959 and penalty, quash the proceedings of the second respondent in CTA. No. 160 of 2002 dated May 20, 2002 in so far as it has confirmed the imposition by the first respondent by his proceedings in TNGST No. 307515/94-95 dated November 30, 2001, of surcharge and additional surcharge on the tax paid under section 7C of the Act and penalty. Both the original petitions were transferred to the file of this court on the abolition of the Tribunal and are numbered as these writ petitions. The petitioner is a company and a registered dealer on the file of the first respondent and engaged in the business of civil works contract all over Tamil Nadu. During the assessment year 1994-95 as a civil works contractor, the petitioner discharged its liability to pay tax on transfer of property involved in the execution of the works contract under section 7C of the Tamil Nadu General Sales Tax Act, which is a compounding provision. The first respondent issued notice proposing to impose additional sales tax on the total contract value on which the petitioner has paid tax under section 7C of the Act. The first respondent also proposed to impose surcharge and additional surcharge on the tax paid by the petitioner under section 7C of the Act. The first respondent issued notice proposing to impose additional sales tax on the total contract value on which the petitioner has paid tax under section 7C of the Act. The first respondent also proposed to impose surcharge and additional surcharge on the tax paid by the petitioner under section 7C of the Act. Penalty was also sought to be imposed. Thereupon the proposal was confirmed by order dated November 30, 2001. On appeal, the Appellate Assistant Commissioner set aside the imposition of additional sales tax. However, the imposition of penalty consequent to the non-payment of surcharge and additional surcharge on the tax paid under section 7C of the Act was confirmed against the proceedings of the Appellate Assistant Commissioner on February 12, 2002. The petitioner preferred the second appeal before the respondent in CTA. No. 160 of 2002. The second respondent also confirmed the order of the Appellate Assistant Commissioner by order dated May 20, 2002. Not satisfied with the order, the petitioner seems to have filed an application to review the order. The Tribunal has rejected the request of the petitioner on the premise that the scope of review jurisdiction, reviewing its own order is restricted by quoting several judgments. The correctness of the said order is put in issue in the former writ petition and the order passed in appeal which was sought to be reviewed is put in issue in the latter writ petition. Heard the learned counsel on either side and perused the materials available on record. The approach of the Tribunal in rejecting the request of the petitioner on a pedantic and technical ground cannot be legally sustained. Even assuming that the petitioner has filed by quoting a wrong provision or rather, without quoting any provision, the respondents, who are quasi-judicial authorities are only to see whether the law on the subject and the statutory provision has been applied in accordance with its requirement in respect of payment of tax by the petitioner and in default whether it warrants imposition of penalty and they can very well rectify the imposition by invoking the inherent power or any other statutory provision notwithstanding the provision quoted in the application by the petitioner or notwithstanding the fact that no provision was quoted. The Tribunal has to reconsider the application for review under section 55 of the TNGST Act. Writ petition No. 35361 of 2005 is ordered accordingly. The Tribunal has to reconsider the application for review under section 55 of the TNGST Act. Writ petition No. 35361 of 2005 is ordered accordingly. In view of the order passed in writ petition No. 35361 of 2005, Writ Petition No. 35370 of 2005 virtually becomes redundant and is dismissed as such. No costs.