9911796707
TMI Blog2007 (9) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition are as follows: The petitioner is an advertisement consultant. He was under the bona fide impression that the transactions relating to his business will not fall under the purview of the definition right to use , and are liable for assessment under section 3A of the TNGST Act, 1959. Therefore, the petitioner did not register themselves as dealers under the said Act and did not file their returns. Based on the inspection conducted on August 12, 1998 and the report submitted by the officials, the second respondent has passed an ex parte order of assessment for the year 1998-99, by determining total and taxable turnover of the petitioner at Rs. 46,23,204 and Rs. 46,23,204 respectively, vide proceedings in TNGST No. 540/1998-99 dated December 31, 2003. The petitioner was saddled with huge liability of tax, besides penalty under section 12(3)(b) of the TNGST Act. Aggrieved by the order of the second respondent, the petitioner preferred an appeal before the first respondent, viz., the Additional Appellate Assistant Commissioner of Commercial Taxes, Coimbatore, under section 31 of the TNGST Act. Though the petitioner submitted all the papers within the stipulated ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to pay 25 per cent of the disputed tax. Placing reliance on the unreported orders of this court in W.P. Nos. 35374, 36584 and 35274 of 2005, learned counsel for the petitioner submitted that a similar order may be passed in the present case also. On the other hand, learned counsel for the respondents, on instructions, submitted that petitioner's premises were inspected on August 12, 1998, and certain documents were recovered. A statement was also obtained from the person in-charge of the premises. Investigation revealed that the petitioner, being an advertisement consultancy, collected boarding charges. Based on the details gathered at the time of the inspection and the boarding charges available on record, the assessment orders were passed on March 10, 2003 under section 34 of the TNGST Act for the assessment years 1994-95 to 1997-98 and served on the dealers on March 14, 2003. He further submitted that the dealers have not produced the accounts enabling the officer to make assessment for the year 1998-99 and was proposed to determine total and taxable turnover for 1998-99 and in this context, objections were also called for. The dealers received the above notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not satisfied as to the correctness of the return and calls for evidence, surely a controversy arises involving a proposition by the assessee and an opposition by the State. The circumstance that the authority who raises the dispute is himself the judge can make no difference for the authority raises the dispute in the interest of the State and in so acting only represents the State. It will appear from the dates given above that in this case the 'lis' in the sense explained above arose before the date of amendment of the section. Further even if the 'lis' is to be taken as arising only on the date of assessment, there was a possibility of such a 'lis' arising as soon as proceedings started with the filing of the return or, at any rate, when the authority called for evidence and started the hearing and the right of appeal must be taken to have been in existence even at those dates. For the purposes of the accrual of the right of appeal the critical and relevant date is the date of initiation of the proceedings and not the decision itself. A Division Bench of this court in Deputy Commercial Tax Officer v. Cameo Exports reported in [2006] 147 STC 218, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 14 of 1999 as unconstitutional and ultra vires. In O.P. No. 1270 of 1999, the petitioner therein mainly questioned the second proviso to section 31 of the Tamil Nadu General Sales Tax Act and the validity of Tamil Nadu Act 14 of 1999. O.P. No. 1245 of 1999 was filed seeking a direction to the respondents therein not to insist upon payment of 25 per cent of admitted tax for entertaining an appeal under section 31 of the Act. O.P. Nos. 1325 to 1328 of 1999 relate to assessment years 1993-94 to 1996-97, to quash the orders passed by the appellate authority, refusing to waive the payment of 25 per cent of admitted tax, under Tamil Nadu Act 14 of 1999 before entertaining the appeals. The argument advanced before the special Tribunal was that, the moment the returns were filed, the assessee gets a pre-existing right to appeal and in respect of such appeal, no restrictions can be made by the subsequent amendment which was brought about in the year 1999. In State of Madras v. Latheef Hameed Co. reported in [1968] 21 STC 476, a Division Bench of this court observed as follows (page 478): . . . There is no controversy before us that the assessee's right to file an appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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