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Judgment
S. Vaidyanathan, J.—In both these writ petitions, the petitioner is one and the same and the assessment years involved are 2010-11 and 2011-12, respectively. Since the issue involved is one and the same, both these writ petitions are disposed of by this common order.
Heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondent.
These writ petitions are filed for a certiorarified mandamus to call for the records comprised in impugned orders in CST.867904/2011-12 and CST.867904/2010-11, respectively, dated 29.1.2015, on the file of the respondent and to quash the same.
The petitioner is a dealer in health products. The petitioner company has a branch/depot in Tamil Nadu, from where they effect intra state sales in Tamil Nadu. The petitioner company was assessed for the assessment years 2010-11 and 2011-12 under the Central Sales Tax Act, 1956. During which additional tax and penalty was proposed to be levied and accordingly it was levied.
Aggrieved by the said order, the petitioner has preferred appeals and the same are pending before the appellate authority.
According to the petitioner, they have paid 25% of the amount, which is a condition precedent for preferring an appeal and it is also stated that they have paid another 25% of the amount for the assessment year 2010-2011. However, for the assessment year 2011-12 is concerned, the petitioner has paid only 25% of the amount and sought for extension of time for further deposit. The petitioner has also stated that they have preferred revision under Section 84 of the Tamil Nadu Value Added Tax Act, 2006. The matter was taken up by the revisional authority and the request of the petitioner was rejected on the following reasons:
"a. The levy of higher rate of tax hon. the turnover which was not covered by C Forms and F Forms in the order dated 14.04.2014, has become the subject matter of appeal and the appeal is still pending disposal before the Appellate Authority.
b. When an issue is pending before the appeal, the assessing authority has no power to reconsider the said issue by making revision of assessment until the disposal of the appeal.
c. If the assessing authority makes any revision of assessment when the assessment is pending before the Appeal, that may either aggravate or dilute the issue which amounts to intervention on the appellate jurisdiction for which the assessing authority has no power at all.
d. The clarification issued by the Commissioner of Commercial Taxes in Acts Cell IV/41367/2000 dated 10.07.2000, it is to inform that the clarification is for the acceptance of the Forms when the issue has not been the subject matter of any of the appeal.
Factually, in this case, the original order was passed on 30.04.2014 and on filing the Forms the order was received on 14.07.2014 as directed in the clarification cited.
The revised order dated 14.7.2014 has now been challenged before the Appellate Deputy Commissioner (CT) Central and the same is pending. When the appeal is pending, revision of assessment based on the clarification cited is not liable to be considered.
In view of the above, the request for revision under Section 84 of the Act is rejected as not liable to be considered and the dealer is requested to furnish the facts of availability of Forms and any other facts before the appellate forum."
In my considered opinion, the pendency of the appeal is not a bar for the petitioner in approaching the authority under Section 84 of the Act. Section 84(4) of the Tamil Nadu Value Added Tax Act, 2006, is usefully extracted hereunder:
"84. Power to rectify any error apparent on the face of the record-
(1) An assessing authority or any appellate or revising authority (including the Appellate Tribunal) may, at any time within five years from the date of any order passed by it, rectify any error apparent on the fact of the record.
(2)...
(3)...
(4) The powers under sub-Section (1) may be exercised by the assessing authorities even though the original order of assessment, if any, passed in the matter has been the subject matter of an appeal or revision."
A bare reading of the above would go show that the revisional authority will have to consider the case of the petitioner, de hors the pendency of the appeal. Hence, the finding of the Assistant Commissioner that the original order is challenged before the appellate authority and when the appeal is pending, revision of assessment, based on the clarification cited, is not liable to be considered, does not merit consideration. Hence, the orders impugned are set aside. The matter is remitted to the authority concerned to consider the case afresh, on the petition under Section 84 of the Act filed by the petitioner. The petitioner is directed to appear before the authority concerned on 9.3.2015 and raise all the grounds/objections available to them. In case, the petitioner fails to avail the opportunity and appear before the authority concerned on 9.3.2015, based on the available records the authority concerned shall pass orders on merits and the petitioner shall not contend at a later point of time that they were not given an opportunity.
The writ petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.