Srinivasa Perumal Trading Co. vs The Deputy Commissioner (CT) and The Commercial Tax Officer

K. Chandru, J.—The petitioner has filed these petitions challenging the notice Ref. No. C1/2019/2004 dated 27.7.2004 issued by the first

respondent relating to the years 1992-93 and 1993-94 respectively by exercising his suo motu power u/s 32 of the Tamil Nadu General Sales Act

(for short, ''TNGST Act'').

The writ petitions were admitted on 17.8.2004 and interim stay was granted. Today, when the Miscellaneous Petitions came up for hearing, by

consent of parties, the main writ petitions themselves are taken up for hearing.

Mr. S. Ramanathan, learned Counsel appearing for the petitioner in both the writ petitions, contended that as against the Assessment Order

dated 30.6.1998, the writ petitioner filed appeals before the Assistant Commissioner (CT), Coimbatore, in C.S.T. Nos. 177 of 1998 and 178 of

1998 respectively and by common order dated 30.4.1999, the appeals were remanded to the Assessing Officer for fresh disposal. At this stage,

revised proceedings were issued by the Commercial Tax Officer, Mettupalayam, who is the second respondent herein, by order dated 30.7.1999

assessing the tax turn over at the rate of 2% for the taxable sale of Rs. 16,41,362/- and the liability was fixed at Rs. 32,827/- and Rs. 11,616/- in

view of the fact that the writ petitioner have already paid a tax of Rs. 65,320/- for the year 1992-93 and Rs. 26,645/- for the year 1993-94. It

was found that an excess amount of Rs. 32493/- and Rs. 15,029/- respectively were to be refunded to the petitioner. However, all of a sudden,

the first respondent Deputy Commissioner (CT), Coimbatore, purporting to have exercised his power u/s 32 of the TNGST Act, by common

order dated 27.7.2004, took up Suo Moto Revision of the orders passed by the Assessing Officer and issued notices stating that the earlier

calculations were wrong and the petitioner is liable to pay enhanced rate of tax at 10% instead of 2% as already ordered by the Commercial Tax

Officer.

The learned Counsel for the petitioner drew the attention of this Court to Section 32(2)(b) of the TNGST Act, which reads as follows:

(2) The Deputy Commissioner shall not initiate proceedings against any such order or proceeding referred to in Sub-section (1), if--

(a) the time for appeal against the order has not expired;

(b) the order has been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Deputy Commissioner or the

Appellate Tribunal, or of a revision in the Special Tribunal

The learned Counsel appearing for the writ petitioner relied on the decision of the Supreme Court reported in 103 (1996) STC 99 [State of

Tamil Nadu v. Jeevanlal Ltd.] wherein the supreme Court had an occasion to consider the provision of Section 34(2)(b) of the TNGST Act, which

also provides for Suo Motu revision and at page 103, it was held as follows:

Section 34(2)(b), on the other hand, imposes a permanent bar on the power of the Board to exercise suo motu revisional powers against those

orders of the Appellate Assistant Commissioner or Deputy Commissioner which get appealed against before the Tribunal or are carried in revision

before the High Court, obviously within the period available for filing such appeals or revisions or even after such period has expired once the

delay in filing such proceedings before the Tribunal or High Court is condoned and the appeal before the Tribunal or revision before the High

Court becomes live and is entertained for decision on merits. In short, the Board of revenue will have no jurisdiction to touch any order of

subordinate authority passed u/s 31(3) or 32(3) in exercise of its revisional jurisdiction u/s 34(2)(a) for the temporary period till the time for appeal

against such orders is not over and even its jurisdiction will be permanently barred u/s 34(2)(b) once appeal or revision against such order of the

subordinate authority is carried for scrutiny in appeal before the Tribunal or in revision before the High court.

Mr. Shanmuga Sundaram, learned Government Advocate (Taxes) representing the respondents, stated that the order passed by the Appellate

Assistant Commissioner was only an order of remittance and, therefore, bar u/s 32(2)(b) of the TNGST Act will not attract this case. However,

confronted with the authoritative pronouncement of the Supreme Court cited supra, the learned Counsel could not counter the same.

In the light of the clear pronouncement of the Supreme Court and also the statutory bar provided u/s 34(2)(b) of the TNGST Act, the impugned

notice issued by the first respondent is unsustainable. Therefore, both the writ petitions are allowed setting aside the impugned notices issued by the

first respondent. In view of the same, no further orders are necessary in W.P.M.P. Nos. 28293 and 28294 of 2004 and the same shall stand

closed. However, the parties are directed to bear their own costs.

In the light of the order passed by the Assessing Officer, excess amount are to be refunded to the assessee and if it is not already paid, the same

shall be refunded to the assessee within a period of four weeks from the date of receipt of a copy of this order.