V. Ramasubramanian - The orders of assessment were passed under the Tamil Nadu General Sales Tax Act, 1959, in respect of the assessment years 1989-1990 to 1993-1994, on various dates in the years 1990, 1991, 1992, 1993 and 1994. The original orders of assessment were revised under section 16 in the year 1994, in respect of the assessment years 1989-90 to 1992-93.

The petitioner filed appeals first before the Appellate Assistant Commissioner and then before the Tamil Nadu Sales Tax Appellate Tribunal. After the orders of the Appellate Tribunal, notices of revision were issued on February 15, 2001 and orders were passed on November 28, 2003 and August 24, 2004.

Though the petitioner filed original petitions before the Tamil Nadu Taxation Special Tribunal, the Tribunal was abolished and the petitions got transferred to this court. In the meantime, the State Government came forward with a one-time settlement Scheme by way of the Tamil Nadu Ordinance No. 7 of 2008, which was later passed as the Tamil Nadu Sales Tax (Settlement of Arrears) Act, 2008. Though the Scheme was in force from November 1, 2008 to January 31, 2009, it was later extended from time to time. Taking advantage of the Scheme, the petitioner approached the second respondent. But since the second respondent expressed a doubt, the petitioner was directed to approach the first respondent. At that time, the petitioner was informed about a clarification issued by the first respondent on January 23, 2009, as per paragraph 4 of which the petitioner was not entitled to the benefits of the settlement Scheme. Therefore the petitioner has come up with the present writ petitions seeking (i) to set aside the portion of the clarificatory letter which disentitles them to the benefits of the Scheme and (ii) a declaration that they are entitled to the benefits of the Scheme.

Heard Mr. V. Sundareswaran, the learned counsel appearing for the petitioner and Mr. R. Mahadevan, the learned Additional Government Pleader (Taxes) appearing for the respondents.

The issue raised in the writ petition is covered by a decision in Karuna Steel Rolling Mills v. Designated Authority, namely, Joint Commissioner of Commercial Taxes [2009] 21 VST 368 (Mad). However, the Principal Secretary and the Commissioner of Commercial Taxes had issued a clarification on January 23, 2009, which made all the Joint Commissioners to think that the benefit of the Act may not be applicable to cases where the original orders of assessment are set aside and matter remitted back for a fresh order. Query No. 4 and the answer thereto, found in the said circular dated January 23, 2009, which is impugned in one of the writ petition, reads as follows :

"Query 4 :

As per section 2(1)(b) of the Act, 'arrears' relate to tax, penalty and interest for which assessment has been made prior to April 1, 2002 and pending collection on the date of filing of application. If the applicant went on appeal against the entire demand and if the appeal resulted in 'remand' subsequently, i.e., after April 1, 2002, after fresh assessment is made, whether the dealers are eligible under the scheme ?

Reply :

When the entire assessment had been set aside on appeal or revision even though the assessment had been made prior to April 1, 2002 it becomes non est since any fresh assessment made and demands raised thereupon subsequently after April 1, 2002 would not be eligible to be covered under this scheme."

However irrespective of the date of the order of assessment, the word "arrears" appearing in section 2(1)(b) of the Act, would actually relate to the tax, penalty or interest for which the assessment was made. The definition reads as follows :

"(b) 'arrears of tax, penalty or interest' means -

(i) tax including additional sales tax, surcharge, additional surcharge and Central sales tax, payable by an applicant upon assessment under the relevant Act; or

(ii) penalty payable by an applicant under the relevant Act; or

(iii) interest payable by an