2021 (12) TMI 378 - HC - VAT and Sales Tax

Rectification of mistake - error apparent on the face of record - whether the office of the 1st respondent was justified in returning the appeal filed by the petitioner against the rectification order dated 29.04.2021? - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT - A reading of Sub Section (5) to Section 84 of the TNVAT Act, 2006 makes it clear that the provisions of this Act relating to appeal and revision shall apply to an order or rectification made under this section as they apply to the order in respect of which such order of rectification has been made which reads as under - Same principle will apply in the case of review under section 84 of the Tamil Nadu Value-Added Tax Act, 2006. Thus, if a review application was dismissed, the petitioner would have been entitled to file a statutory appeal against the original order of assessment and pray for exclusion of time taken in pursuing the application under section 84 by virtue of Section 14 of the Limitation Act, 1963 while preferring an appeal under section 51/52 of the Tamil Nadu Value-Added Tax Act, 2006. If the order, passed originally stands substituted by another order under section 84 of the Tamil Nadu Value- Added Tax Act, 2006, as in the present case, appellate remedy cannot disallowed. It can be appealed before the Appellate Commissioner under section 51/52 of the Tamil Nadu Value-Added Tax Act, 2006 as a fresh period of limitation would commence for appeal from passing of the order under review. Once an assessment order is rectified, the remedy to file an appeal against such assessment order cannot be denied. The memo returning of the appeal filed by the petitioner under Sections 51 / 52 of TNVAT Act, 2006 cannot be sustained - there is no merits in the impugned return memos of the office of the 1st respondent - petition allowed.

Summary

Issues:
- Justification of the office of the 1st respondent in returning the appeal filed by the petitioner against the rectification order dated 29.04.2021 under Section 84 of the Tamil Nadu Value Added Tax Act, 2006.

Analysis:
The petitioner challenged the memo dated 06.08.2021, which returned the appeal against the rectification order dated 29.04.2021. The petitioner had earlier filed for rectification of assessment orders for the years 2013-2014 & 2014-2015, which was disposed of on 29.04.2021. The office of the 1st respondent returned the appeal as time-barred, stating that the original assessment order had merged with the rectification order.

The court referred to Section 84 of the TNVAT Act, 2006, allowing rectification of mistakes in orders passed by various authorities. It also discussed the provisions of Order 47 Rule 1 and Rule 7 of the Civil Procedure Code regarding review of judgments. The court emphasized that an order under review vacates the original judgment, as highlighted in the Sushil Kumar Sen case.

Further, the court cited the Kunhayammed case, explaining that the review does not vacate the decree until the review application is allowed. The court clarified that if an application for review is dismissed, the party can still file an appeal against the original judgment. The court also mentioned Section 14 of the Limitation Act, 1963, allowing exclusion of time taken in pursuing a review petition if pursued bona fide.

The judgment emphasized that if the original order stands substituted by another order under Section 84, the appellate remedy cannot be disallowed. The petitioner was entitled to file an appeal against the original order of assessment. The court concluded that the return of the appeal by the 1st respondent was not justified, and the impugned communications were quashed. The 1st respondent was directed to number the appeal and proceed with the final hearing within three months.

In summary, the court held that the petitioner had the right to file an appeal against the order dated 29.04.2021, and the office of the 1st respondent's decision to return the appeal was not sustainable. The judgment allowed the writ petitions, directing the 1st respondent to dispose of the appeals promptly within three months.