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Judgment
Bakthavatsalam, J.—The petitioner attacks the order passed by the second respondent in the stay petition filed by the petitioner for the
assessment years 1986-87 and 1987-88.
It seems that originally when the assessment was made a dispute arose with regard to the question whether the turnover which was brought to
tax is out of the sale of the scrap or condemned vehicles, etc. For this purpose the appellate authority remitted back the matter to the assessing
officer to make a fresh assessment. As against this the first respondent passed the very same order, against which an appeal has been preferred by
the petitioner before the Appellate Assistant Commissioner under the Tamil Nadu General Sales Tax Act, 1959. It seems that when the petitioner
approached the assessing officer to get an endorsement in the security bond to the effect that the bank guarantee for the undisputed amount of tax
has been received by the assessing officer, the assessing officer returned the papers stating as follows :
Returned.
(2) The demands of Rs. 4,25,161 and Rs. 51,727 respectively for the years 1986-87 and 1987-88 raised on account of giving effect to the orders
of the Appellate Assistant Commissioner (C.T.), Thanjavur, in A.P. No. 457 of 1989 and 327 of 1989, dated 22nd July, 1989, in which the
Appellate Assistant Commissioner (C.T.) has directed to find out the turnover of the buses sold a single unit and assess at 15 per cent and other
various scraps at 5 per cent which has been carried out in this office assessment proceedings in TNGST No. 424857/86-87, dated 15th
December, 1989, in TNGST No. 424857/87-88 dated 15th December, 1989, by making fresh assessment orders.
(3) As such, no appeal order against these assessment orders lie, before the Appellate Assistant Commissioner (C.T.), Thanjavur. The stay
petition to be filed before the Appellate Assistant Commissioner (C.T.), Thanjavur, could not be entertained by me as there is no provision under
the Tamil Nadu General Sales Tax Act to prefer appeal to the Appellate Assistant Commissioner (C.T.) against the orders of the same Appellate
Assistant Commissioner (C.T.), Thanjavur.
When the petitioner approached the appellate authority, the appellate authority returned the paper once again to the petitioner with the following
endorsement :
Returned.
According to form XIX-C, note (2) the bank guarantee has to be filed before the assessing authority and a certificate to the effect has to be
obtained from the assessing authority. The omissions may be supplied and the stay petition may be re-presented along with this check slip on or
before 20th January, 1990.
Mr. R. Lokapriya appears for the respondents. Mr. S. Ramanathan, learned counsel appearing for the petitioner, contends that it is not open to
the second respondent to ask for such an endorsement from the assessing authority. I think learned counsel for the petitioner is quite right in his
submission. In Southern Power Systems (P.) Ltd. v. State of Tamil Nadu [1990] 76 STC 345 (Mad.); (1989) 10 SISTC 166 (Mad.)
Venkataswami, J., has considered a similar issue and has held that section 31 of the Act and rule 31(2) of the Rules do not show that there is any
condition precedent which directs the assessee to furnish a security bond before the assessing officer before the assessee moves the appellate
authority for stay. I think that ratio will equally apply to the facts of this case also. The astonishing factor to be noted here is that the Deputy
Commercial Tax Officer while passing orders on 2nd January, 1990, which has been extracted supra, has not understood the provisions of the Act
or the powers of the appellate authority or the assessing authority. I do not see any provision for filing the appeal before the Appellate Assistant
Commissioner against the very same order passed by the Appellate Assistant Commissioner himself. I think that the assessing officer has gone at a
tangent and returned the papers to the petitioner without understanding the provisions of the Act or the powers of the appellate authorities. The
return made by the assessing authority is wholly unwarranted on the facts and circumstances of this case. I do hope that the officials of the
Commercial Tax Department will at least in future, study the provisions of the Act carefully before they pass any orders on the petitions filed by the
assessees or return the papers to the assessees.
In the result, the writ petitions will stand allowed and the appellate authority is directed to take up the appeals and the stay petitions filed by the
petitioner on file and dispose of them and pass final orders on the stay petition on merits within eight weeks from the date of receipt of copy of this
order. No costs.
Writ petitions allowed.