The discretion of the Tribunal to transfer a case to an Additional Bench for want of quoram, as provided in the regulations, influenced the court's decision.

The writ petition is filed for issuance of a writ of Certiorarified Mandamus to call for the records of the first respondent in N.Dis.No.9458/2008/A2 dated 19. 2008 and to quash the same.

2. The case of the petitioner is that the petitioner is a dealer in Home Appliances and during the assessment year 2004-2005, the petitioner had reported a turnover Rs.56,47,042/- in which the petitioner had shown contract receipt of Rs.3,74,000/- @ 4%. The second respondent assessed the said contract receipt @ 20% treating the same as a sale of Air Conditioner and on that basis, the tax was imposed at the rate of 20% apart from the penalty under the Act. Disputing the liability, an appeal was filed by the petitioner before the Appellate Assistant Commissioner and the same was modified. The petitioner further filed 2nd appeal, after paying entire tax dues and disputed penalty refixed by the Appellate Authority. The said appeal was filed with a delay of 45 days. The first respondent also numbered the said petition and listed for hearing before the first respondent. Since there is no quoram in the first respondent Tribunal, the said petition could not be taken up for hearing. According to the petitioner, as per Regulation 11(3) of the Tamilnadu Sales Tax Appellate Tribunal Regulations, the Chairman has got the discretion to transfer the case for disposal before another Bench. The petitioner filed a stay application for recovery of penalty amount and sought for the transfer of that miscellaneous application for disposal from the main Bench to the additional Bench. But the same has been rejected. Hence, the above writ petition for the above said prayer.

3. I have heard the learned counsel for the petitioner and Mr. R. Mahadevan, learned Additional Government Pleader appearing for the respondents. I have also gone through the documents filed in support of their submissions.

4. It is a case of rejecting the petitioners petition to transfer the miscellaneous application by the Tamilnadu Sales Tax Appellate Tribunal where the appeal has not been taken up for want of quoram. However, as per the regulation 11(3) to the Tamilnadu Sales Tax Appellate Tribunal Regulations, the Chairman has got the discretion to transfer the same to the Additional Bench for want of quoram. Instead of doing that, the same has been dismissed necessitating the petitioner to approach this Court for the relief. The learned counsel for the respondent department also submits that as per the provisions of Tamilnadu Sales Tax Appellate Tribunal regulations, the Tribunal has to pass suitable orders transferring the case to another Bench. Admittedly, the same has not been done in this case. Therefore, I allow the writ petition by quashing the order passed by the first respondent in N.Dis.No.9458/2008/A2 dated 19. 2008 and direct the first respondent to consider and transfer the application dated 25.08.2008 filed by the petitioner to Additional Bench immediately to enable him to have a hearing before the said Bench. Till the petition is transferred and heard on merits by the Additional Bench, the department shall not proceed with the penalty proceedings against the petitioner.

5. With the above direction, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.