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TMI Blog2017 (5) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... t was made under Section 3D(1) of the TNGST Act, 1959, instead of levying under Item 29 of Part C of the First schedule to the said Act. It is clearly stated by the authority in the said notice that the assessment made under Section 3D(1) of the TNGST Act, was not in order. The impugned order cannot be sustained on the ground of limitation as well - petition allowed - decided in favor of petitioner. - Writ Petition No. 40361 of 2016, WMP. No. 34430 of 2016 - - - Dated:- 17-3-2017 - K. Ravichandrabaabu, JJ. For Petitioner : Mr. T. Pramodkumar Chopda For Respondent : Mr.K.Venkatesh ORDER The petitioner is aggrieved by the order passed by the respondent dated 21.10.2016, wherein, the proposal made by the respondent und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the dealer has purchased snacks for ₹ 15,15,099/-, for which no purchase bills were furnished. It was also proposed to levy penalty under Section 12(3)(b) of the said Act. The petitioner gave reply / objections to the said notice on 01.08.2007. They also sought for a personal hearing before passing the revision assessment order, if the objections raised by the petitioner were not accepted. The respondent did not proceed further for nearly nine years. Thereafter, a reminder notice, dated 30.09.2016 was issued to the petitioner calling upon them to file their objections to the revision notice dated 27.07.2007 within 7 days. Since the said notice was issued after a period of 9 years, the petitioner sent a reply on 19.10.2016 calli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the impugned order is liable to be set aside on the ground of violation of natural justice, as the petitioner was not given personal hearing. 4. A counter affidavit is filed by the respondent, wherein, it is contended that though the notice issued to the petitioner dated 27.07.2007 was quoted as the one issued under Section 55 of the said Act, in effect, it is only a notice under Section 16 of the said Act, and therefore, wrong quoting of provisions, cannot be taken advantage of by the petitioner to contend that the proceedings are barred by limitation. It is further contended by the respondent that, since the petitioner-Hotel is recognized by the ITDC, higher rate of tax is liable to be levied, as rightly done in the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d found in order in respect of proposal of Tax at S.Nos.3 to 7 of the items, out of which S.No.7 admittedly is in respect of purchase tax under Section 7(A) of unbranded (re-sale) at 4%. Therefore, it is evident that the petitioner had produced purchase details in respect of these snacks unbranded item and the same were verified and found in order by the Assessing Authority. 9. That being the factual position, the notice for revision dated 27.07.2007 has referred to the very same purchase of snacks to the tune of ₹ 15,15,099/-, as the one without producing the purchase details. Therefore, it is evident on the face of the assessment order and the notice for revision itself that the respondent has factually committed mistake in issui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owered to pass the order impugned in this writ petition after a period of nine years i.e. on 27.10.2016. 11. In order to find out the nature of a proceedings, neither the nomenclature nor the provision of law quoted therein would play as a deciding factor. On the other hand, the intention of such proceedings as could be gathered from the recitals contained therein is important to decide its nature. 12. Therefore, I find that the impugned order cannot be sustained on the ground of limitation as well. Even otherwise, it is seen that the petitioner was not given opportunity of hearing before passing the impugned order. Normally under such circumstances this Court would remit the matter back to the Authority to pass fresh order of assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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