(Writ Appeal filed under clause 15 of the Letters Patent against the order dated 09.07.2007 passed by the learned Single Judge in W.P.(MD)No.4189 of 2004.)
F.M. Ibrahim Kalifulla, J.
The appellant is aggrieved against the order of the learned single Judge dated 09.07.2007 passed in W.P(MD)No.4189 of 2004, dismissing the writ petition.
2. The appellant was aggrieved against the notice dated 24.06.2004 and the auction notice dated 04.10.2004 issued by the first respondent. In the impugned notice dated 24.06.2004, demand of payment of interest on delayed payment of tax and penalty has been made in a sum of Rs.12,30,588/-. As against the said notice, the appellant preferred a Revision under Sections 33 and 35 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as ?the TNGST Act?). It is stated that the Revision was returned by the second respondent as not maintainable. While the said Revision was under process in the office of the second respondent, the impugned auction notice dated 04.10.2004 also came to be issued.
3. Mr. M. Md.Ibrahim Ali, learned counsel appearing for the appellant would contend that by virtue of Section 33(1) read along with Section 33(4) of the TNGST Act, the Revision was maintainable and the appellant is also entitled to seek for appropriate direction to defer the demanded amount of Rs.12,30,588/-.
4. Learned Single Judge took the view that the issue only related to the calculation of the interest and therefore, the appellant can approach the assessing officer himself for rectifying any mistake in the calculation of the interest claimed. Pointing out the prayer of the appellant in the writ petition in seeking for a direction to the second respondent to entertain the Revision itself while setting aside the impugned demand notice dated 24.06.2004 and the auction notice dated 04.10.2004, learned counsel for the appellant would contend that the grievance of the appellant was not restricted to the quantum of the interest as determined by the first respondent.
5. We perused the impugned demand notice dated 24.06.2004 as well as the grounds of Revision and the Annexures enclosed along with the said notice. On a perusal of the said documents, we are convinced that the issue clearly relates not only to the quantum of interest as determined under Section 24(3) of the TNGST Act, but also the very power of the first respondent to levy interest under Section 24(3) of the TNGST Act on the sales tax, additional sales tax and penalty, which were payable for the relevant years.
6. On a reading of Section 33(1) of the TNGST Act, we find that the said provision enables any person to object an order passed or proceedings recorded under this Act for which no appeal is provided under Section 31 or Section 31-A of the TNGST Act to prefer a Revision before the Deputy Commissioner. The expression ?order passed? or ?proceeding recorded?, in our considered opinion should take within its fold the demand notice as has been issued, which has now been impugned in the writ petition purported to have been made under Section 24(3) of the Act dated 24.06.2004. It is not in dispute that as against the said demand notice as well as the auction notice dated 04.10.2004, no appeal can be validly filed by invoking Section 31 or 31-A of the TNGST Act. When it can be validly held that the impugned notice dated 24.06.2004 and the auction notice dated 04.10.2004 would fall within the expression ?order passed? or ?proceeding recorded? as mentioned in Section 33(1) of the TNGST Act, there can be no two opinion about the entitlement of the appellant to challenge the said proceedings by way of a Revision before the second respondent under Section 33 of the TNGST Act.
7. While stating the above said legal position, we are also conscious of the fact that the demand of interest related to the payment of principal tax as well as additional tax which were due and payable by the appellant were of the year 1985/86 and the delay in making the payment ranges between 452 to 6619 days. Therefore, when the State is deprived of the said revenue during the relevant period, it will have to be held that, even while holding that the appellant is entitled to challenge the impugned notices by preferring a Revision under Section 33 of the TNGST Act, whatever prejudice caused to the Revenue should be offset by directing the appellant to deposit substantial amount as a condition precedent for filing the Revision. It is also relevant to state that though the appellant would contend that the payment was delayed because of the pendency of the appeal preferred as against the demand of principal tax as well as additional tax, the fact remains that the appellant failed in his attempt while making the challenge and the demand was ultimately upheld by the concerned adjudication authorities.
8. In such circumstances, while directing the second respondent to entertain the revision preferred by the appellant as against the impugned notice dated 24.06.2004 and the auction notice dated 04.10.2004, we direct the appellant to deposit a sum of Rs.4,00,000/- (Rupees Four Lakhs Only) with the first respondent and furnish security by way of a personal bond to the satisfaction of the second respondent for the balance amount demanded in the impugned notice dated 24.06.2004. Such payment of Rs.4,00,000/- should be made by the appellant within a period of eight weeks from the date of receipt of a copy of this order. Furnishing of security should be made by the appellant within a period of two weeks from the date of receipt of a copy of this order. The Revision also shall be re-presented by the appellant within a per
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iod of two weeks from the date of receipt of a copy of this order. In any event, if the appellant fails to comply with any one of the conditions relating to the payment of Rs.4,00,000/- and furnishing of security within the stipulated time, it is open to the second respondent to reject the Revision without deciding the same on merits. Pending disposal of the Revision by the second respondent, the impugned notice dated 24.06.2004 and the auction notice dated 04.10.2004 shall be directed to be kept in abeyance. 9. The writ appeal stands allowed with the above directions. No costs. The connected M.P(MD)No.1 of 2007 is closed.