OM SARAVANA STEEL FURNITURE MART v. DESIGNATED AUTHORITY CUM DEPUTY COMMISSIONER (CT), VELLORE.
2009-01-09
K.RAVIRAJA PANDIAN, P.P.S.JANARTHANA RAJA
body2009
DigiLaw.ai
ORDER K. RAVIRAJA PANDIAN, J. - The writ petitions are filed by the assessee seeking for the relief of issuance of writ of certiorarified mandamus to call for the records of the Designated Authority-cum-Deputy Commissioner (Commercial Taxes), first respondent in each of the case, i.e., Rc. C3.17051/2002, Rc. C3/16705/2002, Rc. C3.15687/2002 and Rc. C3.14326/2002 respectively dated December 15, 2003 and quash the same as illegal, arbitrary and against the provisions of the Act and further direct the first respondent to issue the certificate of settlement in form IV as per section 8 of the Tamil Nadu Sales Tax (Settlement of Disputes) Act, 2002. As the facts are one and the same in all the writ petitions, the writ petition in W.P. No. 6946 of 2004 is taken up as a typical case for discussion and the material facts, which are required to be stated are as follows. The petitioner is a registered dealer under the Tamil Nadu General Sales Tax Act, 1959 and an assessee on the file of the second respondent. During the assessment year 1996-97, the petitioner was assessed on a total and taxable turnover of Rs. 80,79,624 and Rs. 77,85,561, respectively, by the assessing officer. When the revision filed by the petitioner was pending before the Tamil Nadu Taxation Special Tribunal, the petitioner opted for resolving its dispute under the Samadhan Scheme introduced by the State Government, called "The Tamil Nadu Sales Tax (Settlement of Disputes) Act, 2002" (hereinafter referred as, "the 2002 Act", for short). The petitioner filed an application for settlement which has been taken up on file by the designated authority. The petitioner paid a sum of Rs. 60,975 as per the requirement of the Act. However, the designated authority rejected the application of the petitioner for samadhan on the premise that the dealer has failed to fulfil the conditions laid down under section 7(2) of the Samadhan Act, 2002, i.e., non-payment of interest. The correctness of the same is put in issue in these writ petitions. Mr. Soundararajan, learned counsel appearing for the petitioner, has submitted that the petitioner had filed an application as required under section 5 of the Act, along with the proof of payment of the amount payable at the rates specified under section 7 of the Act.
The correctness of the same is put in issue in these writ petitions. Mr. Soundararajan, learned counsel appearing for the petitioner, has submitted that the petitioner had filed an application as required under section 5 of the Act, along with the proof of payment of the amount payable at the rates specified under section 7 of the Act. The interest payable by the applicant on the amount determined under sub-section (1) of section 7 has not been intimated to the petitioner. Further, he contended that there is no time-limit prescribed for payment of interest. The requirement of section 8 is that the interest has to be paid before the issuance of the certificate of settlement under section 8. In this case, the petitioner has paid the amount on January 6, 2004. However, the designated authority by order dated December 15, 2003 has rejected the application on the ground of non-payment of interest. If at all the payment of interest made by the petitioner can be regarded as belated payment, for which, the petition could not be rejected. The order impugned is thus erroneous and has to be set aside with a direction to issue the settlement certificate. The learned Government Pleader appearing for the respondent argued for sustaining the order of the designated authority. We heard the argument of the learned counsel on either side and perused the materials on record. In order to resolve the issue, we have to see the relevant provisions of the Act. Section 4 of the 2002 Act provides for eligibility of an applicant to file an application under the Act. As per section 5, the application under section 4 of the 2002 Act has to be made to the designated authority within the time prescribed therein in form I with the proof of payment of the amount payable at the rate specified in section 7.
As per section 5, the application under section 4 of the 2002 Act has to be made to the designated authority within the time prescribed therein in form I with the proof of payment of the amount payable at the rate specified in section 7. Section 7(1) provides for the rates applicable in determining the amount payable under sub-section (1) to section 6, which are as follows : "(a) Where it relates to any tax in dispute, at the rate of fifty per centum of the tax in dispute; or (b) Where it relates to any tax and penalty in dispute, at the rate of fifty per centum of the tax in dispute and at the rate of twenty-five per centum of such fifty per centum of the tax in dispute; (c) Where it relates to any penalty in dispute, at the rate of fifteen per centum of the penalty in dispute; (d) Where it relates to any interest in dispute, at the rate of twenty-five per centum of the interest in dispute;" Section 7(2) provides that the interest payable by an applicant on the amount determined under sub-clauses (a), (b) and (c) of section 7(1) shall be twenty-five per centum of the interest payable at the rate specified under the relevant Act and the same shall be paid before the issue of certificate under section 8. As per rule 3(7) of the Rules, the assessing officer has to intimate the designated authority about the collection of interest. Thus, from a conjoint reading of the abovesaid provision, it is very clear that if any eligible assessee intends to avail the benefit under the Samadhan Scheme, he has to file his application under section 5 within the time-limit prescribed in form I with the proof of payment of the amount at the rate specified in section 7. Thereupon, section 6 mandates the designated authority to verify the correctness of the particulars furnished in the application with reference to all the relevant records and determine the amount payable at the rate specified in section 7. While so determining, the section directed the designated authority to give credit to the amount paid by the applicant towards arrears of tax, penalty or interest in dispute, before filing the application under section 5.
While so determining, the section directed the designated authority to give credit to the amount paid by the applicant towards arrears of tax, penalty or interest in dispute, before filing the application under section 5. The section further provides that if the amount paid by the applicant along with the application falls short by not more than 10 per cent of the amount determined, the designated authority shall make a demand of the further amount and it shall be paid by the applicant within 30 days. If the amount paid along with the application falls short by more than 10 per cent and if the further amount demanded is not paid within the time stipulated, after giving a reasonable opportunity to show cause, the application shall be rejected. In this case, the petitioner filed his application under section 4 of the 2002 Act on September 28, 2002 along with the proof of payment of the amount, as prescribed under section 7(1). The said amount was also paid on September 28, 2002. The said amount carries interest under section 7(2) of the 2002 Act read with section 24(3) of the TNGST Act from the date from which the amount so paid has become payable till the date of actual payment. The assessing officer, by his demand dated June 6, 2003, demanded interest for the belated payment of the amount. The designated authority, by his proceedings, dated September 4, 2003 has also informed the petitioner to pay the interest, but there was no compliance. Again, after the lapse of more than 30 days, another demand was made on November 5, 2003, wherein the earlier demand dated September 4, 2003 was referred to. By both the demands dated November 5, 2003 and September 4, 2003, the petitioner was informed that the designated authority has received intimation from the assessing officer by communication dated October 7, 2003 that the amount of interest payable by the petitioner has not been paid. In respect of the demand dated September 4, 2003, as a last chance, the petitioner was given seven days time by notice dated November 5, 2003 to make the payment by putting the petitioner on notice that in default the application filed by him under section 4 of the Act would be rejected. Even after the expiry of time granted in the notice, nothing is forthcoming from the petitioner.
Even after the expiry of time granted in the notice, nothing is forthcoming from the petitioner. Even a request for extension of time has not been made by the petitioner. In that factual circumstances of the case, by the impugned proceedings dated December 15, 2003, the designated authority rejected the application of the petitioner on the ground of failure to fulfil the condition laid down under section 7(2) of the 2002 Act. The petitioner was duly informed by the assessing officer about the quantum of interest to be paid by proceedings dated June 6, 2003 and the designated authority has also demanded the interest under section 7(2) of the 2002 Act read with section 24(3) of the TNGST Act, by his letter dated September 4, 2003 and again on November 5, 2003, the ultimate notice was issued to make the payment within seven days from the notice. All the intimations and efforts taken by the designated authority to have the interest amount recovered from the petitioner went in vain. In those circumstances, we are of the view that the designated authority has scrupulously followed the statutory provision in passing the impugned order. Only after the rejection order it appears that the petitioner paid the interest on January 6, 2004. At the time of making the payment of interest on the aforesaid date, in the eye of law, there was no application pending before the designated authority as the application made by the petitioner has been rejected as early as December 15, 2003. All the contentions raised by the petitioner that the interest has to be determined by the designated authority and demand has to be made by the authority and such demand has not been made are all incorrect statements. For the foregoing reasons, we are of the view that the writ petitions deserve no merit consideration. The petitioner is not entitled to the relief sought for. The writ petitions are dismissed. No costs. The learned counsel for the petitioner submits that now that the State Government has enacted Samadhan Scheme under Act 60 of 2008 and the petitioner is eligible to avail the said scheme, a direction may be given to the authorities concerned to consider the application to be filed by the petitioner under the Act 60 of 2008, for settlement by adjusting the amount paid by the petitioner under the 2002 Act.
Having regard to the totality of the circumstances of the case that the amount payable by the petitioner under the 2002 Act has been duly paid and that the petitioner was non-suited for non-payment of paltry sum of interest and that even that amount has been paid subsequent to the order of rejection, we are of the considered view that the interest of justice would be met, if a direction is issued to the authorities under the Act 60 of 2008 to consider the application of the petitioner, if any filed, for the assessment year involved in these writ petitions for adjustment of the amount paid under the 2002 Act, if there is no bar for such adjustment. Such an order is passed.