LARSEN AND TOUBRO LTD Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) BRIEF facts leading to the Writ Petition are as follows: The petitioner, is a registered dealer under the TNGST Act, engaged in business of commercial construction and works contract. For the assessment year 1999 -2000, they filed their returns quoting the turnover for Rs. 289,25,35,384/ -. Based on their returns, the Assessing Officer passed an assessment order in TNGST 0620015 dated 30.04.2007, determining the taxable turnover at Rs. 2,98,25,55,972/ - and disallowed the claim of the petitioners, regarding the inter -State works contract, RMC Freight and pumping charges, sales in the course of import and other issues. He further determined the tax liability at Rs. 37,01,68,497/ - and levied Rs. 6,79,44,165/ - as additional tax. Besides, the assessing authority also levied penalty under Section 12(3)(b) of the TNGST Act at Rs. 1,91,03,488 and under the Additional Sales Tax Act, 1970 at Rs. 1,16,89,193/ -. Out of the above said amounts, the petitioner has already paid tax to an extent of Rs. 33,19,61,522/ - and additional tax to an extent of Rs. 5,23,58,574/ - and that the balance of tax and additional tax due to be paid were Rs. 3,82,06,975 and Rs. 1,55,85,591 respectively.

(2.) IT is the case of the petitioner that they have already paid Rs. 3,29,47,570/ - towards tax amount and Rs. 37,68,265/ - towards additional tax amount, in addition to the amounts, shown as paid in the assessment order. Therefore, the petitioner filed rectification petition under Section 55 of the TNGST Act on 16.05.2007 to rectify the error apparent on the face of the record, which had crept in due to non -consideration of the tax and additional tax paid by them. After taking into consideration the tax and additional tax paid by the petitioner, the assessing authority passed the rectification order on 17.05.2007, stating that out of the total tax assessed by the assessing authority at Rs. 37,01,68,497/ -, the petitioner had already remitted Rs. 36,49,09,092/ - and that the balance amount of tax due and payable was only Rs. 52,59,405/ -. The rectification order further reflected that out of the additional tax liability assessed at Rs. 6,79,44,165/ -, the petitioner had already paid Rs. 5,61,26,839/ - and therefore, the balance amount of additional tax due and payable by the petitioner was only Rs. 1,18,17,326/ -. As regards merits of the case, there was no change in the assessment order, except the quantum of amounts mentioned above. Aggrieved by the assessment order dated 13.04.2007, the petitioner filed a statutory appeal before the Appellate Assistant Commissioner (CT) - VI, Chennai, under Section 31 of the TNGST Act, disputing several issues, which includes tax liability of Rs. 2,98,72,566/ -, levy of additional tax of Rs. 1,18,17,326/ -, penalty under Section 12(3)(b) of the TNGST Act of Rs. 26,29,703/ - and penalty under Section 12(3)(b)(ii) of the TNGST Act of Rs. 88,62,995/ -.

(3.) LEARNED Counsel for the petitioner submitted that the first respondent, who is the assessing officer has no authority under law to thwart a well -considered stay order passed by the Appellate Assistant Commissioner, CT, VI, Chennai. Relying on the decision in Ragam Polymers v. CTO reported in 8 VST 131, she submitted that the powers of discretion conferred on the Appellate Assistant Commissioner under Section 31(5) of the TNGST Act, cannot be interfered with any manner except by way of further appeal. She further submitted that once the burden of proof on the part of the petitioner as to the payment of taxes had been established beyond doubt before the first appellate authority in the presence of the departmental representative, the first respondent has no authority to over -reach the order of the appellate authority. She further submitted that the order of the first respondent, who is a subordinate officer to the appellate authority in the hierarchical position as per the statute, who has no jurisdiction to declare an order passed by his superior as nullity and on the contrary, it is binding on him.