Plydham vs The Registrar, Tamil Nadu Taxation Special Tribunal, The Appellate Assistant Commissioner-CT III and Deputy Commercial Tax Officer

Markandey Katju, C.J.—This writ petition has been filed challenging the impugned order dated 20.3.2003 passed by the first respondent in

O.P. No.1102 of 2002.

It appears that an assessment order was passed against the petitioner by the third respondent, the Deputy Commercial Tax Officer, Chennai,

against which a first appeal was preferred by the petitioner to the second respondent, the Appellate Assistant Commissioner-CT III KC 102. The

second respondent rejected the first appeal by his order dated 17.1.2002.

Thereafter, at the relevant time, the assessee had two options, either to file a second appeal before the Appellate Tribunal u/s 36 of the Tamil

Nadu General Sales Tax Act, 1959 (hereinafter referred to as the Act) or to file a revision before the Special Tribunal u/s 38A of the Act. The

petitioner opted for the second alternative, viz. filing a revision before the Tamil Nadu Taxation Special Tribunal u/s 38A of the Act. By the

impugned order, the Special Tribunal dismissed the revision on the ground that there was no limitation prescribed by the statute. It was, however,

made clear that as and when the legislature prescribed a period of limitation, the revision could be entertained.

Evidently, the Special Tribunal rejected the petitioner''s revision relying on the first proviso to Section 38A of the Act, which states -

Provided that every application to the Special Tribunal for the exercise of the powers under this Section shall be preferred within such period as

may be prescribed"".

The Special Tribunal was evidently of the view that since no period of limitation was prescribed, the revision was not maintainable u/s 38A of

the Act. We do not agree. If no period of limitation was prescribed, then obviously the first proviso does not come into operation at all and hence,

the revision u/s 38A of the Act could be filed at any time and it was certainly maintainable. Hence, the revision should not have been dismissed on

the ground that just because no limitation under the first proviso had been prescribed, a revision was not maintainable. In our opinion, the view

taken by the Special Tribunal is not correct and hence, the impugned order is quashed.

However, the question now remains as to what is to be done since we are informed that the Special Tribunal is not functioning now in view of

the passing of Act 34 of 2004, though the same has not been notified. We are informed that the Special Tribunal is non-functional and hence, the

matter cannot now obviously go back to the Special Tribunal.

The petitioner had a right of appeal u/s 36 of the Act and therefore, in the peculiar circumstances of this case, we direct that if such an appeal is

filed by the petitioner within one month from today, the same shall be entertained without raising any objection as to limitation and shall be decided

expeditiously thereafter. However, we make it clear that the petitioner will have to comply with the conditions of pre-deposit as laid down in

Section 36 of the Act as existed in the relevant assessment year and then only his appeal will be heard by the Tribunal.

With this observation, the writ petition is disposed of. However, there will be no order as to costs. Consequently, W.P.M.P. No.2105 1 of

2003 is closed.