2016 (10) TMI 999 - HC - VAT and Sales Tax

Maintainability of appeal when AO has rectified or refused to rectify an order - validity of Return memo - return of appeal petitions filed by the petitioner against the rectified assessment orders - appeals presented after a gap of more than ten months from the date of original order of assessment - what would be the effect of a rectified order? - Section 55(4) of the Act - Held that - similar issue decided in the case of State of Tamil Nadu vs. Sabarigir Industries 2014 (3) TMI 193 - MADRAS HIGH COURT where it was held that When the rectification proceedings resulted in a positive action, which has the effect of destroying the finality of original assessment, thereby reopening the assessment order itself, then the provisions relating to appeal would lie. On the other hand, when the Assessing Officer refuses to interfere with the original order and that order is allowed to remain intact, the said order would not be amenable normally to appeal remedy. In so holding, this Court referred to the provisions under Section 55(4) of the Tamil Nadu General Sales Tax Act, 1959, inserted by Amendment Act No. 31 of 1972, providing for appeal and revision remedy when an order of rectification is made, and not when the authority concerned refuses to pass an order of rectification - decided against Revenue. Whether the appeal petition, which was filed after the passing of the revised order of assessment, could be held to be presented within time, in accordance with the provisions of Section 31 of the Tamil Nadu GST Act and whether remittance made by the petitioner recording the pre-depsoit was valid? - Held that - The decision in the case of State of Tamil Nadu vs. E.P.Nawab Marakkadai 1995 (8) TMI 293 - MADRAS HIGH COURT relied upon and it was held that limitation for filing the appeal would commence from the date of receipt of the rectified order i.e. dated 1.6.2016 and if the said date is reckoned, then the appeal petition is still within the period of limitation. Petition disposed off - impugned return memos are set aside, leaving it open to the petitioner to raise all the contentions before the Appellate Authority. The petitioner is directed to re-present the appeal along with a copy of this order and the Appellate Authority shall entertain the appeal and deal with the same in accordance with law - decided partly in favor of petitioner.

Summary

Issues:
Challenge of return memo for appeal petitions due to delay in filing, Effect of a rectified order on appeal maintainability, Validity of appeal filing timeline post rectified assessment order.

Analysis:
The petitioner challenged the return memo for appeal petitions against rectified assessment orders, citing a delay of more than ten months from the original assessment order. The central legal issue was the impact of a rectified order on appeal maintainability. The court referred to precedents like State of Tamil Nadu vs. Sabarigir Industries, emphasizing the distinction between rectification orders modifying original assessments and refusals to rectify. The judgment highlighted that appeal rights exist when rectification alters the original assessment's finality, allowing appeal before the appellate forum.

Regarding the specific case, the court noted that rectification actions reopening assessment orders trigger appeal rights. The Assessing Officer's oversight of the petitioner's tax payment details delayed rectification, affecting the petitioner's ability to appeal. The court stressed that recording tax payments in the assessment order is crucial for pursuing remedies before the Appellate Authority, contrary to the Appellate Authority's view of the issue as minor.

Additionally, the judgment referenced the State of Tamil Nadu vs. E.P.Nawab Marakkadai case, addressing the timeliness of appeal petitions post revised assessment orders. The Full Bench clarified that appeal timelines start from the rectified order's receipt date, ensuring the appeal in question remained within the limitation period. Consequently, the court partially allowed the Writ Petitions, setting aside the return memos and instructing the petitioner to re-present the appeal with all contentions before the Appellate Authority for due consideration in accordance with the law.