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TMI Blog2019 (2) TMI 1737X X X X Extracts X X X X X X X X Extracts X X X X ..... de the order of the Assessing Officer. In other aspects the appeal was modified and dismissed - After remand, the Assessment Order was again passed on 10.10.2002, which was again challenged by way of appeal before the Appellate Assistant Commissioner CT-VI, Chennai. By his order dated 18.11.2003 the Appellate Assistant Commissioner dismissed the appeal on the ground that the assesssee has not challenged the order of remand and against which the Appeal was filed before the Tamil Nadu Sales Tax Appellate Tribunal, Chennai. The Appellate Tribunal considered the judgment of the Kerala High Court in M SYED ALAVI AND OTHERS VERSUS STATE OF KERALA [ 1981 (5) TMI 113 - KERALA HIGH COURT] , held that the docrtine of res judicata normally would not be attracted to statutory proceedings to entertain the appeal and allowed the appeal and held that merely because the option was not exercised by the assessee within a stipulated time same cannot be the ground for denial for concession in the rate of tax conferred in the statue on the assessee. Thus, entertaining the appeal on the ground that principles of res judicata normally would not be attracted in the tax matters - the first Substantial Ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case, the Tribunal is right in law in accepting the claim of compounding rate of tax under Section 7(c) of the Act when the respondent/dealer has not exercised his option at the time of commencement of assessment year? 2. The brief facts leading to file this Revision is as follows: 2.(a) Tvl.Sharada Enterprises are the dealers in Polycarbonate Plastic Sheets, Vinyl Stickers, Self Adhesive Film. They were finally assessed for the year 1999-2000 under the TNGST Act 1959 on a total and taxable turnover of ₹ 1,20,36,481/- and ₹ 46,56,690/- respectively, as per the Assessment Order dated 29.05.2001. Aggrieved over the above order of assessment, the assessee preferred an appeal before the Appellate Assistant Commissioner (CT)-VI, Chennai, who by his order in AP.191/2001 dated 26.12.2001, has set aside the assessment made on a turnover of ₹ 8,26,029/- at 12% and remanded the case back to the Assessing Officer for passing fresh order, after issue of a notice in order to enable the Assessing Officer to segregate the turnover under item Nos.(i) and (ii) as referred to therein and to assess the taxable turnover allowing 15% deduction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the above issue. For exemption under Section 7-C of the Act, the assesssee ought to have exercised the option to pay tax under compound rate of tax. 5. The learned counsel appearing for the Revenue vehemently contended that to avail the benefit under Section 7-C of the Act, option should have been exercised by the assessee as stipulated in the Section. When the assessee failed to exercise such option, the Tribunal ought not to have allowed the appeal. Hence, submitted that the order of the Tribunal required interference. 6. The learned counsel appearing for the Respondent submitted that admittedly, he has entered into the work contract only at the end of the financial year. He has rightly filed Return and paid tax. In the absence of any specific format for exercising option the contention of the Revenue that he should have exercised options in the first month of the financial year cannot be accepted. Further the contention of the learned counsel for the Respondent that merely because remand has not been challenged previously and the same will not bar for the Tribunal to go into the facts when the order was ultimately challenged before the Tribunal. In support of the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled against the ultimate decision of the case or if an appeal is filed, it is confirmed in such appeal. 17. In the instant case, it is true that no appeal was filed against the decision dated 12th April, 1976, of the Appellate Assistant Commissioner. The effect of non-filing of an appeal is that the finding is binding on the assessing authority when the case went back to that authority and also on the Appellate Assistant Commissioner while disposing of the appeal from the revised decision of the assessing authority. It is not binding on the Appellate Tribunal in the appeal filed under Section 39 against the decision of the Appellate Assistant Commissioner. The Appellate Tribunal was free to arrive at its own decision on the question of liability of the petitioners to assessment to sales tax." 9. Similarly, the High Court of Karnataka in Ashok Gramodyoga Sahakara Sangha Ltd., case (supra) has held as follows: "11. Technical rules governing the doctrine of res judicata normally would not be attracted to statutory proceedings, when the statutory proceedings pertain to tax liability. Technically, the assessee would be aggrieved only when there is an enforceable assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r subsection (1) of Section 3 and desirous of paying tax for any year under this section may, any any time before final assessment for that year, exercise his option to be assessed under this section and for that purpose shall submit such returns in such manner as may be prescribed: Provided further that any dealer paying tax under this section and desirous of paying tax under Sub-section (1) of Section 3 may, any any time before final assessment for that year, exercise his option to pay tax in accordance with that sub-section and for that purpose shall submit such returns in such manner as may be prescribed. (2-A) The permission granted by the assessing authority under sub-section (2) shall continue in force so long as the dealer is eligible to be assessed under this Section and has not withdrawn his option to be so assessed. (3) The tax paid under sub-section (2) shall be subject to such adjustment as may be prescribed on the completion of final assessment in the manner prescribed. (4) The provisions of this section shall not apply in respect of any sale or purchase made on or after the 1st day of April 1990." 12. It is to be noted that when the assessee, works cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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