MEHAR HOTELS PRIVATE LIMITED Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) The petitioner is a private limited company. It has registered itself as a dealer with the respondent. It is running a restaurant where ready to eat unbranded foods including sweets, savories, unbranded, non-alcoholic drinks and beverages are served. For the assessment years in question, the petitioner filed returns in Form-L. The returns filed along with proof of payment of tax were accepted by the respondent who had also issued assessment orders under Section 22 of the Tamil Nadu Value Added Tax Act, 2006. While so, vide notices dated 26.12.2011 and 06.08.2012, the respondent pointed out that though the petitioner was liable to pay tax at 12.5% as per Section 7(1)(a) of the Act, they had paid tax only at 2%. The short levy of tax was quantified at Rs.48,95,752/- and the petitioner was called upon to pay the said amount. In response thereto, the petitioner submitted its explanation on 09.01.2012 and 13.08.2012. Rejecting the petitioner's explanation, the respondent invoking his power under Section 27(1)(b) of the Act, revised the assessment and directed the petitioner vide proceedings dated 16.08.2012 to pay Rs.59,52,423/-, being the difference of tax, together with interest. Challenging the same, these five writ petitions have been filed.

(2.) The learned counsel appearing for the petitioner reiterated all the grounds set out in the affidavits filed in support of the writ petitions. His pointed contention is that the petitioner had filed the returns under Form-L. As per Rule 7(1)(e) of the Tamil Nadu Value Added Tax Rules, 2007, every registered dealer who opts to pay tax under Section 6 or 8 shall file a return for each month in Form L on or before 20th of the succeeding month to the assessing authority along with proof of payment of tax. Section 8 of the Act deals with payment of tax at compounded rates. When the petitioner opted to pay tax as composition levy and the same was also accepted and acted upon by the assessing authority, it cannot be re-opened or reassessed on the ground that tax had been levied at a rate lower than that at which the turn over in question was taxable.

(3.) The learned counsel for the petitioner placed reliance on the decision reported in (Mad) (Sinetech vs. Commercial Tax Officer, Korattur Assessment Circle, Chennai, 2008 15 VST 398). The said decision was followed in a subsequent decision reported in (Mad) (Hydro Electrical Systems vs. Commercial Tax Officer, Velacherry Assessment Circle, Chennai, 2010 34 VST 160). He would also point out that the question of levy of interest under Section 42(3) of the Act will not arise, because the order directing the petitioner to pay the difference of tax was passed only on 16.08.2012. Only if any amount remained unpaid after the assessment, there was scope for invoking Section 42 of the Act. That was clearly not the case here. The returns filed by the petitioner were accepted and also acted upon. Therefore, the learned counsel for the petitioner wanted this Court to set aside the orders impugned in these writ petitions.