COMMERCIAL TAX OFFICER Vs. HOTEL KALPANA

JUDGEMENT

(1.) Even though the Tamil Nadu Taxation Special Tribunal has passed a common order in respect of two assessment years, namely, 1977-78 and 1978-79, in the petitions filed by the Assessee, the Revenue has filed only one Writ Petition against the said order dated 20.8.1998. In the circumstances, the only one Writ Petition available, hence, has to be treated for the first of the assessment year, namely, 1977-78. Hence, on record, there is no Writ Petition filed by the Revenue for the assessment year 1978-79.

(2.) The Assessee herein is a hotelier. While making the assessment for the assessment year 1977-78, referring to G.O. Ms. Nos. 1186 and 1187 dated 22.10.1982, the Assessing Authority granted the relief of waiver to the extent of tax not collected. Pending final assessment, the Assessee remitted the tax collected by them as well as the additional tax. Since the said collection of tax was contrary to the condition of waiver under G.O. Ms. No. 1187 dated 22.10.1982, subsequent proceedings were initiated under Section 55 of the Tamil Nadu General Sales Tax Act to withdraw the order on waiver, restricting the same to the extent of tax not passed on to the customer. While referring to the said waiver, the Assessing Authority was stated to have refunded the additional tax also on the view that there was waiver on additional tax levy too. Apart from that, when the Assessee had collected tax, thereby passed on the liability, it was ineligible for the genefit of waiver under G.O. Ms. Nos. 1186 and 1187 dated 22.10.1982. Thus the Assessing Officer passed an order on 31.7.1986 and confirmed the above proposal.

(3.) Aggrieved by the same, the Assessee filed a petition before the Tamil Nadu Taxation Special Tribunal, Chennai and sought for quashing of the order passed under Section 55 of the Tamil Nadu General Sales Tax Act and to have a direction for refund of the tax paid. In considering the contention of the Assessee, the Tamil Nadu Taxation Special Tribunal applied the decision of this Court Shree Annapoorna and Anr. v. The State of Tamil Nadu and Anr.,1963 STC 18, wherein it was held that the question of waiver would arise only if there was a tax liability. If the transactions were not taxable, irrespective of whether the Assessee had collected tax or not and whether the assessment had become final or not, waiver was available to an Assessee. Thus, following the said decision, the Special Tribunal allowed the claim of the Assessee and ordered refund. Aggrieved by the same, the Revenue has come before this Court by filing the present Writ Petition.