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TMI Blog2022 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court by the Appellate Deputy Commissioner inasmuch as the Hon ble Supreme Court while dismissing the appeal filed by the petitioner against the order of the Division Bench, in M/S. V.V.V. AND SONS EDIBLE OIL LIMITED, VERSUS THE COMMERCIAL TAX OFFICER-1 (FAC) , VIRUDHUNAGAR [ 2015 (12) TMI 1652 - MADRAS HIGH COURT] had affirmed the decision of the learned Single Judge in M/S. V.V.V AND SONS EDIBLE OILD LIMITED VERSUS THE COMMERCIAL TAX OFFICER 1 (FAC) VIRUDHUNAGAR. [ 2015 (11) TMI 1867 - MADRAS HIGH COURT] and had granted liberty to the petitioner to file a statutory appeal under Section 58 of the Tamil Nadu Value Added Tax Act, 2006. That apart, the provisions of the Tamil Nadu Value Added Tax Act, 2006 also does not contemplate appointment of the Joint Commissioner or any other Officer from the Commercial Tax Department as an arbitrator to decide the legality of the Assessment Orders or Revision Notice which are the subject matter of appeal before the Appellate Commissioner or by the Appellate Tribunal as the case may be. The impugned notice has relied upon the inspection by the enforcement being officers on 24.10.2014 and 25.10.2014. Serious allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch culminated in assessment orders, dated 31.08.2015 for these three assessment years. 5. Aggrieved by these Assessment Orders, the petitioner had filed W.P. (MD).Nos.20162 to 20164 of 2015 before this Court. These writ petitions were dismissed by a learned Single Judge of this Court vide Common Order dated 06.11.2015 by directing the petitioner to file a statutory appeal within a period of four weeks from the date of receipt of copy of the aforesaid order. 6. Aggrieved by the aforesaid order, the petitioner filed W.A. (MD).Nos.1372 to 1374 of 2015 before the Division Bench of this Court. These writ appeals were disposed of by directing the petitioner to comply with the following observations: (i) The appellant shall file statutory appeals within a period of four weeks from the date of receipt of a copy of this judgment, along with 25% of the tax demanded under the impugned assessment orders; (ii) Upon filing of such appeals, together with 25% of the tax demanded, the appellate authority shall deal with the appeals independently with reference to the facts as well as law and dispose of them within further period of three months; and (iii) Till then, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court. The petitioner also appears to have filed an appeal in time before the expiry of six weeks granted by the Hon ble Supreme Court. 10. During the interregnum, the department appears to have initiated recovery proceedings for the balance amount as only 25% was deposited by the petitioner, pursuant to the directions of the Division Bench as modified by the Hon ble Supreme Court. This was a subject matter of W.P.(MD).No. 2751 of 2017 before this Court. The learned Single Judge of this Court quashed the recovery proceedings vide order dated 17.02.2017 in W.P. (MD)No.2751 of 2017. While quashing the recovery notice, the learned Single Judge of this Court directed the appellate authority to pass orders within a period of three months as stipulated by the Division Bench of this Court by an order, dated 18.12.2015 in W.A.(MD).Nos.1372 to 1374 of 2015. The relevant portion from the said order reads as under: 11.The said time period has not been worked out in view of the Special Leave petition filed by the petitioner before the Hon'ble Apex Court, where final orders were passed on 27.09.2016, wherein it has been given six weeks time to approach the authority with a rider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tever decision be made by the appellate authority, who decides the appeal on merits. 11. The learned Senior Counsel for the petitioner submits that after the appeals were filed, the cases were also heard at length and the petitioner had also filed written submissions in Appeal Nos.1, 2 and 3 of 2017. Despite the case being heard on several occasions and filing the written submissions on either side, no orders have been passed. 12. Under these circumstances, the petitioner approached the 1st respondent, the Principal Commissioner Commissioner of Commercial Tax with a request for appointment of Joint Commissioner to consider the legality or otherwise of the assessment orders passed by the third respondent in respect of these assessment years in line with the orders passed in the case of Madras Cements Limited, dated 22.06.2013. The learned Senior Counsel for the petitioner has drawn attention to the order passed on merits, pursuant to appointment of arbitrator in the case of Madras Cements Limited, vide order dated 22.06.2013 in its proceedings No.A/11/5422/3/2012. The learned Senior Counsel for the petitioner also drawn attention to the following portion: On having fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to comply with the said order. If on any reason the time fixed by the competent Court is unable to be adhered to and the proceedings are unable to be finalised, the party to the proceedings can approach the very same Court seeking extension of time stating sufficient reasons and once valid reasons are given, normally the Court/Tribunal would extend the time, depending upon the facts and circumstances of the case. Admittedly the said procedure has not been followed in this case and the department has chosen to ignore the direction given by the Tribunal, which is binding on them. 22. (a) Similar issue arose before the Honourable Supreme Court in S.L.P.No.2103 of 1987 and the Supreme Court considering the time fixed in similar case, refused to grant permission to continue with the disciplinary proceeding, even though in the said case, factually after the retirement of the person concerned. The operative portion of the order dated 1.9.1989 reads as follows: The Central Administrative Tribunal, Allahabad Bench by its order dated 1.8.86 directed: In the result we order that the disciplinary case against the petitioner, charge sheet for which was given to him on 22.9.83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been initiated after the retirement and more than two years had passed by then and yet it had not been finalised. Taking that aspect into consideration, the direction to complete the proceedings within six months had been given. This should have been sufficient warning to the administration for early disposal of the proceedings. This is why justice demands the quashing the proceedings. There will be no order as to costs. (Emphasis Supplied) (b) One of us (N.Paul Vasanthakumar,J.) had an occasion to consider similar issue in the decision reported in (2006) 2 MLJ 143 (Dr.N.Shahida Begum v. State of Tamil Nadu) and in W.P.No.31317 of 2004, etc., order dated 12.12.2008 (M.Xavier v. State of Tamil Nadu Another) and allowed similar prayers and held that after expiry of the time, without extension of time granted by the Tribunal, the proceedings cannot be continued. (c) In the Division Bench judgment reported in (2008) 4 MLJ 776 (B.Krishnan v. T.N.Water Supply Drainage Board), presided over by one of us (Elipe Dharma Rao,J.), similar issue was considered as to whether the department can proceed further if the enquiry was not completed within the stipulated time in spit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the impugned order, which, in our considered view, is without any authority and is liable to be set aside on the ground that when this Court refused to extend the time for completing the enquiry for the alleged irregularities committed by him during the period from 1981-82 to 1987-88 when he was working as Executive Engineer, Ooty (on the basis of the audit report) and by virtue of the orders passed by this Court, he was reinstated and even though time was granted to complete the enquiry, they failed to complete the same. ....... (d) Before the Division Bench of the Bombay High Court also similar issue was raised and the Division Bench in the decision reported in 2005 (2) LLJ 607 (Ramrao Ramachandra Datir v. State of Maharashtra) held that the department cannot proceed further with the charge memo. In paragraphs 6 to 8 it is held thus, 6. ........ In the instant case, it is not in dispute that the first charge-sheet dated March 10, 1986 consisted of eight charges. The petitioner has challenged the validity of the same in Writ Petition No.598 of 1986 and this Court on March 24, 1986 permitted the petitioner to withdraw the petition by specifically observing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be obeyed and implemented without any reservation. In paragraph 31 it is held thus, 31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 23. We are conscious of the fact that if there is non-cooperation of the delinquent officer to comply with the time limit fixed by the Court/Tribunal to complete the enquiry and pass final orders in disciplinary proceedings, the Department cannot be blamed. In such contingency it is for the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, it is intentionally not carrying out the orders of the court. Flagrant violation of the court's orders would reflect the attitude of the concerned party to undermine the authority of the courts, its dignity and the administration of justice. In the case of Re: Vinay Chandra Mishra [(1995) 2 SCC 584], this Court held that `judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. Dignity and authority of the Courts have to be respected and protected at all costs. 14. As far as the second writ petition in W.P.(MD).No.18670 of 2018 is concerned, it is submitted that since an arbitrator has not been appointed and therefore the impugned notice is unsustainable. It is submitted that demand cannot be based on hypothetical basis by relying on the statement of Manager and General Manager of the petitioner. It is submitted that in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. 19. That apart, the petitioner s appeals were pending before the second respondent/Appellate Deputy Commissioner. Further orders may have been passed during the pendency of the appeal before the Hon ble Supreme Court by the Appellate Deputy Commissioner inasmuch as the Hon ble Supreme Court while dismissing the appeal filed by the petitioner against the order of the Division Bench, vide its order dated 18.12.2015 in W.A.(MD).Nos.1372 to 1374 of 2015 had affirmed the decision of the learned Single Judge in W.P.No.(MD).Nos.20162 to 20164 of 2015, vide order dated 06.11.2015 and had granted liberty to the petitioner to file a statutory appeal under Section 58 of the Tamil Nadu Value Added Tax Act, 2006. Section 58 deals with appeal before the Appellate Tribunal as is evident from a reading of Section 58 of the Tamil Nadu Value Added Tax Act, 2006, same is reproduced as under: Appeal to Appellate Tribunal.--(1) Any officer prescribed by the Government or any person objecting to an order passed by the Appellate 1Deputy] Commissioner under sub-section (3) of section 51, or by the Appellate 1 [Joint] Commissioner under subsection (3) of section 52, or by the 1 [Joint] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin a further period of thirty days, admit a memorandum of cross-objections filed after the expiration of the first mentioned period of sixty days, if it is satisfied that the officer empowered under sub-section (1) or the person against whom an appeal has been preferred, as the case may be, had sufficient cause for not filing the memorandum within the first mentioned period. (3) The appeal and the memorandum of cross-objections shall be in the prescribed form and shall be verified in the prescribed manner and the appeal shall be accompanied by such fee as may be prescribed: Provided that no fee shall be payable by the officer empowered under sub-section (1). (4) In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard, and for sufficient reasons to be recorded in writing - (a) in the case of an order of assessment (i) confirm, reduce, enhance, restore fully or partially, as the case may be, or annul the assessment or the penalty or both; or (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal has been preferred: Provided that, in the case of an appeal against an order passed by the 1 [Joint] Commissioner under sub-section (1) of section 53, the Appellate Tribunal may, in its discretion, give such direction as it thinks fit, in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction, in such form and in such manner as may be prescribed. (7) (a) The appellant or the respondent may apply for review of any order passed by the Appellate Tribunal under sub-section (4) on the basis of the discovery of new and important facts which after the exercise of due diligence were not within his knowledge or could not be produced by him when the order was made: Provided that no such application shall be preferred more than once in respect of the same order. (b) The application for review shall be preferred in the prescribed manner and within one year from the date of which a copy of the order to which the application relates was served on the applicant in the manner prescribed and where the application is preferred by any party other than a departmental authority, it shall be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said notice. It is for the petitioner to reply to the same to distance itself from the proposals contained therein, in such proceedings. Proceedings initiated under Section 27(2) of the Tamil Nadu Value Added Tax Act, 2006 cannot be scuttled. 26. Therefore, I do not find any merits in these writ petitions as well. These writ petitions are also therefore liable to be dismissed. 27. However, liberty is given to the petitioner to file a detailed reply to such impugned Pre-Revision Notice dated 06.07.2018 and proceedings bearing reference No.TIN:33175721640/2014-2015, within a period of thirty days from the date of receipt of a copy of this order. 28. On such reply being filed before the State Tax Officer, the respondent in W.P.(MD).No.18670 of 2018 shall proceed to pass appropriate orders on merits and in accordance with law. Needless to state that the aforesaid order shall be passed as expeditiously as possible after hearing the petitioner, preferably, within a period of six months from the date of receipt of a copy this order. 29. These writ petitions stand dismissed with the above directions. No costs. Consequently, connected miscellaneous petitions are closed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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