(Judgment of the Court was delivered by S.J.Mukhopadhaya,J) These appeals have been preferred by the Revenue against the order dated 21.4.2009, whereby the learned Judge directed the Revenue to issue refund vouchers atleast for the admitted amount of Rs.6,50,58,905/- within a stipulated period.
2. The main plea taken by the Revenue is that the Revenue having taken steps for suo motu revision against the original order of the assessment on the ground of escaped turnover, it was not open for the Court to direct the refund till the disposal of the such revision petition.
3. Per contra, accordingly to the learned counsel for the respondent-assessee, for the assessment years in question, the Revenue has no jurisdiction to initiate suo-motu revision under section 16 of Tamil Nadu General Sales Tax Act (for short, 'the TNGST Act').
4. In reply, the learned counsel for the appellant-Revenue submitted that challenging the jurisdiction of the assessing authority to initiate suo-motu revision for the assessment years in question, the Writ Petitions were preferred by the assessee and this Court having directed the assessee to raise all the questions before the assessing officer, this question should be left open.
5. We have heard the learned counsel for the parties and perused the records.
6. It appears that the assessment for the years 1996-1997 to 2000-2001 was made on 08.10.2002. The respondent-assessee thereafter filed an application under section 55 of the TNGST Act, for rectification, which was ordered on 06.03.2003. Thereafter, the assessee preferred appeal(s). In the said appeals, while for the assessment years 1996-1997 to 1998-1999, the appeal(s) was remanded on 9.1.2004, no interference was made so far as the assessment years 1999-2000 and 2000-2001 are concerned. On remand, the revisional order of assessment was passed on 29.10.2004 in respect of the assessment years 1996-1997 to 1998-1999, against which, another appeal(s) was preferred by the assessee and the said appeal was partly dismissed and partly remanded on 27.07.2007 and in view of the part order of remand, the assessing authority gave effect to the same on 15.05.2009. The suo-motu revision thereafter started in May 2009 under Section 16 of the TNGST Act.
7. It is not in dispute that in respect of the assessment years 1996-1997 to 2000-2001, assessment orders were passed and the assessing authority found that a total sum of Rs.7,94,64,051/- was due to be refunded to the assessee. Though such an amount of refund was found to be due to the assessee and Form-C was also issued, the refund was not given, forcing the assessee to move the Writ Petitions.
8. Before the learned single Judge, on instructions, the learned Additional Government Pleader appearing for the Revenue, took a plea that a further sum of Rs.1,44,05,146/- has to be adjusted towards the arrears of penalty, leaving a net amount of Rs.6,50,58,905/- as the excess tax liable for refund. But the Revenue refused to refund even the said amount on the ground that the amount could be adjusted against the future assessment.
9. In the above background, the learned single Judge, in the absence of Rule to adjust the amount against the future assessment, directed the Revenue to refund the amount of Rs.6,50,58,905/-. Prima facie, we find no illegality in the order which was passed on the basis of the submissions made before the Court. Before the learned single Judge, it was not even mentioned that the assessing authority intends to proceed with suo-motu revision under Section 16 of the TNSGST Act against the assessee. The suo motu revision was initiated in May 2009 and therefore, on the basis of a subsequent suo motu revision petition, the order of the learned single Judge cannot be held to be illegal.
10. Now, as far as the question of adjustment of the amount against the future assessment, is concerned, in the absence of any law, it is not open for the Revenue to state that out of the admitted amount due to be refunded, they could keep the amount with them for adjustment against future assessment. The learned counsel appearing on behalf of the Revenue submitted that the Court should not decide the question of jurisdiction of the assessing authority to start sou-motu revision under Section 16 of the Act. But, such submission cannot be accepted, in view of the fact that the Revenue is with-holding the amount on the ground of initiation of sou-motu revision under Section 16 of the TNGST Act read with Rule 18(7) of TNGST Rules, 1959.
11. The learned counsel appearing on behalf of the assessee rightly pointed out that the assessment relates to the period 1996-1997 to 2000-2001. The period of limitation as was prescribed under Section 16(1)(a) of the TNGST Act was amended with effect from 01.07.2002. The said amendment cannot be given effect in regard to the assessment years 1996-1997 to 2000-2001. In the amended Section 16(1)(a) of the TNGST Act, limitation period of 5 years was prescribed "from the expiry of the year to which the tax relates".
12. In the present case, as the expiry of the year relates to 31.03.2001, the limitation for exercising the power under Section 16(1)(a) comes to an end on 31.03.2006. Thereafter, with regard to the old assessment year 1996-1997 to 2000-2001, it is not open for the assessing authority to make the assessment on the ground of escaped turnover under Section 16 of the TNGST Act on the basis of the subsequent amendment made under Section 16(1)(a).
13. However, as we find that in the meantime, on the basis of the appeal(s) preferred by the assessee, a revised order of assessment has been passed on 29.10.2004 and on the basis of the subsequent assessment, Form-C has also been issued, we modify the impugned order of the learned single Judge, dated 21.4.2009, by directing the appellant-Revenue to issue refund vouchers atleast for the admitted amount(s), along with statutory interest, as shown in Form-C issued pursuant to the revised order of assessment dated 29.10.2004, as partly modified by the appellate authority, vide order 27.7.2007 read with order dated 15.5.2009, within a period of two weeks, from the date of receipt of application along with a copy of this judgment.
14. The Writ Appeals stand disposed of with the aforesaid observations. No costs. The Miscellaneous Petitions are closed.
kpl To The Commercial Tax Officer, Now re-designated as Assistant Commissioner of Commercial Taxes, Egmore-I Assessment Circle, Taluk Office Building, Spurtank Road, Chetpet, Chennai 600 031