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TMI Blog2015 (4) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court, in Union of India v. Kamlakshi Finance Corpn. Ltd., [1991 (9) TMI 72 - SUPREME COURT OF INDIA] wherein, it has been held that the mere fact that the order of the appellate authority is not acceptable to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. It is not in dispute that as against the orders of the Appellate Deputy Commissioner, both the petitioner and the Government have preferred their appeals and since they are pending, as rightly contended by the respondents, the said appeals cannot be construed as withdrawn, however, for this reason, it is not justified to contend that since the appeals are pending before the Tribunal and the said proceedings have not reached a finality, the demand as per the original order has to be taken as the basic demand for consideration for the applications under Samadhan Scheme. The first respondent is directed to entertain the applications filed by the petitioner under Samadhan Scheme and pass necessary orders in accordance with law - petition allowed. - W.P.NO.24198 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of arrears of tax penalty or interest in respect of which assessment has been made prior to 1st day of April 2007 against which an appeal or revision is not pending before any Court on the date of filing application. According to the petitioner, by notification in G.O.Ms.No.153, dated 31.8.2010, the time for filing such application was extended upto 31.12.2010 and hence, the petitioner is eligible to apply for said Samadhan Scheme and accordingly, the petitioner filed applications in Form I for samadhan for the year 1991-92 and 1992-93 respectively before the first respondent herein on 3.12.2010. However, since it was proposed to reject the application filed by the petitioner, a notice was issued to the petitioner, calling for objections. Pursuant to the same, the petitioner filed objections and on consideration of the same, by proceedings, dated 1.8.2014, the first respondent has rejected the said applications holding that the said applications are not maintainable under Section 6(3) of the TNST (Settlement of Arrears) Act, 2010. Aggrieved by the same, the petitioner has come forward with the present writ petitions. 4. A common counter affidavit has been filed on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2010 respectively totaling ₹ 5,33,369/- falls below 90% of the tax and interest payable under the provisions of Section 7 of the Act. Hence, the applications filed by the petitioner for settlement of the arrears, came to be rejected. With these averments, the respondents sought for dismissal of the writ petitions. 6. Heard the learned counsel appearing for the petitioner and the learned Addl.Government Pleader (Taxes) appearing for the respondents and perused the entire records. 7. The Tamil Nadu Sales Tax (Settlement of Arrears) Act, 2010 was enacted to provide for settlement of arrears of tax, penalty or interest pertaining to sales tax and the matters connected therewith or incidental thereto. 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, the Government found that a large number of cases were pending at the recovery stage and, therefore, the Government came out with the said S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Government may, by notification, specify, from time to time, in such form, and in such manner, as may be prescribed, with proof of payment of the amount payable at the rates specified in section 7. (2) A separate application shall be made for each assessment year. (3) The applicant shall send a copy of the application made under sub-section (1) to the assessing authority, appellate authority or revisional authority under the relevant Act, before whom any proceeding or appeal or revision, as the case may be, is pending, within seven days from the date of making such application before the designated authority. 6. Determination of amount payable by the applicant. - (1) The designated authority shall verify the correctness of the particulars furnished in the application made under section 5 with reference to all relevant records and determine the amount payable at the rates specified in section 7. (2) The designated authority shall demand further amount payable by the applicant in the form prescribed, if the amount paid by the applicant along with application falls short of not more than ten per cent of the amount determined under sub-section (1). (3) If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of commencement of the Act in the form prescribed with proof of payment of the amount payable at the rates specified in Section 7. Section 7 contains four clauses. Clause (a) deals with the cases relating to best of judgment assessment for non-production of accounts; Clause (b) deals with non-filing of declaration forms, which arise under the provisions of CST Act; Clause (c) relates to arrears of tax, which has been admitted as tax due as per the returns filed for the year with corresponding arrears of penalty and interest and Clause (d) relates to arrears of penalty or interest or both and where there is no corresponding arrears of tax pending collection on the date of application, the amount which the applicant has to pay under each of the clauses have been mentioned. 22. Therefore, the applicant, while submitting application under Section 5 has to calculate the amount payable as per the rates mentioned in Section 7(a) to (d) and remit the same and file proof of payment along with application. A separate application is required to be filed for each assessment. If any application or revision is pending, then the applicant has to forward the copy of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assessing officer while verifying the application as to the correctness of the particulars furnished exercising power, under Section 6(1) by taking into consideration relevant records and then determine the amount payable at the rates specified in Section 7. It is a settled legal principle that any Settlement Act or amnesty scheme have to be strictly interpreted and there cannot be any substitution or reading down the provision and the dealer/applicant cannot seek for reliefs beyond the scope of the scheme of the Settlement Act. 24. Apart from the above referred provisions, Section 8 of the Act deals with settlement of arrears and issuance of certificate. If the authority is satisfied about the payment of amount determined under Section 6(1), by an order, settle the arrears of tax, penalty or interest and issue a certificate in such form as may be prescribed, and thereupon the applicant shall be discharged from his liability or interest. In terms of sub-section (2) to Section 8, the designated authority, for reasons, to be recorded in writing, may refuse to settle the arrears of tax, penalty or interest and such orders shall be passed after giving reasonable opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme and the said scheme is applicable only to settled demand and if any assessment or appeal proceedings are pending, then the demand as per the original order, i.e. assessment order, dated 30.10.2009 has to be taken as the basic demand for calculation of samadhan payment and since the petitioner had only remitted ₹ 5,33,369/- and ₹ 2,34,513/- along with Samadhan scheme application, which are below 90% of the tax payable under the scheme together with interest and hence, it has been held by the first respondent that the applications are not maintainable. 11. The reason given by the respondent while rejecting the applications filed by the petitioner, in my opinion, is not sustainable. It is not in dispute that by order dated 16.2.2010, the Appellate Deputy Commissioner has partly allowed the appeals filed by the petitioner as against the original assessment order, dated 30.10.2009. It is needless to mention that once the superior authority (Appellate Deputy Commissioner) passes an order, such order is binding on the lower authority (Assessing Officer) who function under the jurisdiction of such superior authority and the order of the Tribunal is binding upon the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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