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TMI Blog2016 (10) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, 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 peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitions have been filed by the petitioner challenging the return memo issued by the first respondent, returning appeal petitions filed by the petitioner against the rectified assessment orders, as being not maintainable. The reason for returning the appeal petition is on the ground that the appeals have been presented after a gap of more than ten months from the date of original order of assessment, i.e. 5.8.2015 and in the rectified order passed by the Assessing Officer dated 1.6.2016, excepting for the tax paid particulars, all other matters are identical to that of the original assessment order. 4. The legal issue to be determined is as to what would be the effect of a rectified order? 5. This issue is no longer res integra and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. Similar view was also taken in the decision of this Court reported in 114 STC 359 STATE OF TAMIL NADU v. SPEEDLINE AGENCIES. This Court, in paragraph 5 of the judgment, pointed out as follows:- Any order made by an authority declining to correct any alleged errors has the effect of leaving the original order intact. It is only when rectification is ordered, and as consequence, one of the parties is aggrieved by such modification, a remedy is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer passed orders only on 1.6.2016. It is only thereafter, the petitioner could prefer appeal before the Appellate Authority and has preferred the same. However, the appeal has been returned by the Appellate Authority as not maintainable. The reason assigned in the return memo is not sustainable for the simple reason that unless and until the tax paid by the petitioner is recorded in the order of assessment, the petitioner would not be in a position to work out his remedy before the Appellate Authority. Therefore, it is not a minor issue as pointed out by the Appellate Authority. 7. At this juncture, it would be worthwhile to refer to the decision of the Hon'ble Full Bench of this Court in the case of State of Tamil Nadu vs. E.P.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner. Though the Tribunal had remanded the matters on an incorrect reasoning, we are confirming the order of remand for the reasons above mentioned and direct the Appellate Assistant Commissioner to pass fresh order on merits and in accordance with law in the light of our observations contained in this judgment. 9. Thus by applying the legal position as enunciated above, it has to be 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. 10. Accordingly, the Writ Petitions are partly allowed and the impugned return memos are set aside, leaving it open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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