STATE OF TAMIL NADU Vs. SRINIVASAN AND COMPANY

JUDGEMENT

(1.) THE department is the petitioner in all these five cases. The assessee is Tvl. Srinivasan and Co., 7 -7A, Post Office Road, Virudhunagar. Assessee's appeals, namely, M.T.A. Nos. 483, 539, 540, 541 and 542 relating to the assessment years 1977 -78, 1978 -79, 1979 -80, 1980 -81 and 1981 -82 were filed before the Tribunal. The appeals were posted for hearing on various dates, viz., August 24, 1984, September 20, 1984, November 22, 1984, December 19, 1984, December 26, 1984, January 25, 1985, March 1, 1985, April 6, 1985, May 18, 1985 and July 17, 1985. Finally the appeals were posted for bearing on August 13, 1985. Since the authorised representative of the assessee was not ready, the appeals were dismissed for default and the enhancement petitions filed by the department were allowed. The assessee filed M.P. Nos. 304, 305, 306, 307 and 308 of 1985 before the Tribunal. The assessee's representative contended that since he was sick he was unable to be present in the Tribunal. Therefore he sent a telegram to the Tribunal praying for adjournment. However, the Tribunal did not accept the reason given by the authorised representative for restoration of the appeals. Hence the petitions filed for restoration of the appeals were also dismissed on December 24, 1985. Thereafter, the assessee filed another set of petitions numbered as M.P. Nos. 98, 102, 101, 100 and 99 of 1986 respectively for restoration of the appeals dismissed for default. After hearing the counsel appearing on both sides, the Tribunal took the view that enhancement petitions filed by the department were allowed without hearing the assessee and, therefore, natural justice was denied to the assessee. In order to give an opportunity to the assessee to make his representation on the enhancement petitions filed by the department, the Tribunal allowed the second set of petitions filed for restoration of the appeals and accordingly, the appeals were restored and posted for hearing on merits. It is against the common order passed in the second set of petitions, the department is in revision before this Court.

(2.) THE learned department representative, submitted as under : The Tribunal was not correct in allowing the petitions filed by the assessee for restoration of the appeals for a second time. There is no provision in the Act or in the Rules for filing the restoration applications for the second time. There is no provision in the Act to cancel the order of the assessment when it was affirmed by the Tribunal earlier and if the assessee is aggrieved over the common order passed by the Tribunal, ought to have approached the High Court by way of a revision petition. There is no provision for filing a petition for restoration of the appeals for the second time. It was therefore submitted that the order passed by the Tribunal in restoring the appeals by allowing the petitions filed for the second time is without jurisdiction. For all these reasons, it was submitted that the order passed by the Tribunal in the second set of applications filed by the assessee has to be set aside.

(3.) BY drawing the attention of this Court to the provisions contained in sections 36, 36(3) and 38 of the Tamil Nadu General Sales Tax Act, 1959, and rules 9(2), 9(3) and 30 of the Tamil Nadu General Sales Tax Rules, it was submitted that the common order passed by the Tribunal in the second set of applications filed by the assessee is in order.