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TMI Blog2007 (9) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order, the first respondent preferred an appeal before the first appellate authority under the TNGST Act, 1959, the Appellate Assistant Commissioner (CT), Pollachi in Appeal Petition No. 603 of 1995, S.C. No. 13 of 1985 and A.S.T. No. 15 of 1985. The appeal was allowed by order dated October 24, 1985. The Joint Commissioner (SMR) initiated a suo motu proceedings under section 34 of the Tamil Nadu General Sales Tax Act, 1959, set aside the order of the Appellate Assistant Commissioner and restored the assessment order by his proceedings dated May 2, 1991. The first respondent's application for review of the said order was also rejected by the Joint Commissioner by order dated November 29, 1991. Challenging the said order, the petitioner filed writ petition in W.P. No. 18096 of 1991 before this court. The said writ petition was transferred to the Tamil Nadu Taxation Special Tribunal on its constitution and taken up for orders in T.P. No. 1341 of 1997 and the same was disposed of on November 10, 1998 with a direction to the first respondent to avail the statutory remedy available under the TNGST Act and for the purpose of limitation, the time spent during which the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sen to re-present it on June 25, 2003. Such an appeal by no stretch of imagination could be construed as pendency of appeal as required under section 4 of the 2002 Act. As per section 4 of the 2002 Act, the pendency of an appeal or revision, which has been filed on or before February 28, 2002 is a condition precedent for making an application under section 5 of the 2002 Act. Since the appeal filed by the first respondent could not be regarded as one filed on or before February 28, 2002 as on that date, it was not admitted, the first respondent was not entitled to the benefit of the 2002 Act. The learned counsel appearing for the first respondent has argued for sustaining the order of the Special Tribunal. We heard the argument of the learned counsel on either side and perused the materials on record. Section 4 of the Tamil Nadu Sales Tax (Settlement of Disputes) Act, 2002 reads as follows: "4. Eligibility for settlement.-(1) Subject to the other provisions of this Act, an applicant may make an application for settlement of arrear of tax, penalty or interest in dispute in respect of any period for which an assessment has been made under the relevant Act,- (i) against which an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the word, as defined in the dictionaries, carries with it the idea of permanent preservation; becoming part of the permanent records of the public office where it is filed, and includes the idea that the paper is to remain in its proper order on the file in the office. (Bergeron v. Hobbs 65, Am. St. Rep. 85)" The word "file" has been defined in Black's Law Dictionary, Fifth Edition, 1979 as follows: "File. n. A record of the court. Milton v. United States, C.C.A.La. 105 F. 2d 253, 255. A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file as a matter of record and reference. But, in general, 'file' or the 'files', is used loosely to denote the official custody of the court or the place in the offices of a court where the records and papers are kept. The 'file' in a cause includes the original complaint and all pleadings and papers belonging thereto. . . File. v. To lay away and arrange in order, pleadings, motions, instruments and other papers for preservation and reference. To deposit in the custody or among the records of a court. To deliver an instrument or other paper to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the word "pending" as follows: "(1) not decided, determined, or established (1a) pending lawsuit, patent pending (2) about to happen; impending . . ." As per the above definitions, if the appeal is filed into the Tribunal on a particular day, the appeal is regarded to be filed on such date and it is pending for consideration till it is finally determined. The appeal and revision referred to in sub-clauses (i) and (ii) of the section 4(1) of the 2002 Act is not only an appeal before the Special Tribunal but before the statutory first appellate authority, the Appellate Assistant Commissioner and the revisional authority, the Deputy Commissioner or the Joint Commissioner, as the case may be. So far as the appeal and revision filed before the Appellate Assistant Commissioner, Deputy Assistant Commissioner and Joint Commissioner are concerned, there is no procedure envisaged in the regulations of the Tribunal for any admission. So far as the Special Tribunal is concerned, though the procedure was followed that the case has to be posted for admission, having regard to the language employed in sub-clause (i) and sub-clause (ii) of section 4(1), i.e., "filed and pending" cannot be str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Tribunal did not find any case for admission on merits, that has to be stated by passing an order for dismissal. That contingency neither was visualised nor did it happen in this case. It is enough if an appeal or revision is filed and pending for consideration. For our above reasoning, we can take support of the decision of the Supreme Court in the case of Commissioner of Income-tax v. Shatrusailya Digvijaysingh Jadeja reported in [2005] 277 ITR 435; [2005] 7 SCC 294, 298, wherein a scheme known as "Kar Vivad Samadhan Scheme, 1998" was considered by the Supreme Court in respect of a dispute, which is somewhat comparable to the facts of the present case and held thus (at page 441): "10. The basic point which we are required to consider in this case is the meaning of the word 'pending' in section 95(i)(c) of the said Scheme. 11.. The object of the Scheme was to make an offer by the Government to settle tax arrears locked in litigation at a substantial discount. It provided that any tax arrears could be settled by declaring them and paying the prescribed amount of tax arrears, and it offered benefits and immunities from penalty and prosecution. In several matters, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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