The Commercial Tax Officer v. M/s.Zeneco Agro Chemicals Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 7.8.2009CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOWrit Appeal Nos.703 to 707 of 2009& M.P.No.1 of 2009 in W.A.No.703 of 2009& M.P.Nos.2,2,2 and 2 of 2009 in W.A.Nos.704 to 707 of 2009The 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. .. Appellant in all the Writ Appealsvs.M/s.Zeneco Agro Chemicals Ltd.,Rep. by its Director,Now, known as M/s.Syngenta Crop. Protection Pvt. Ltd.,Royal Insurance Building-3rd Floor,14-J, Tata Road, Churchgate,Mumbai-400 020. .. Respondent in all the Writ AppealsWrit Appeal No.703 of 2009 against the order dated 21.4.2009passed by the learned single Judge in Writ Petition No.4358 of 2009on the file of this Court.Writ Appeal No.704 of 2009 against the order dated 21.4.2009passed by the learned single Judge in Writ Petition No.4359 of 2009on the file of this Court.Writ Appeal No.705 of 2009 against the order dated 21.4.2009passed by the learned single Judge in Writ Petition No.4361 of 2009on the file of this Court.Writ Appeal No.706 of 2009 against the order dated 21.4.2009passed by the learned single Judge in Writ Petition No.4362 of 2009on the file of this Court. https://hcservices.ecourts.gov.in/hcservices/ Writ Appeal No.707 of 2009 against the order dated 21.4.2009passed by the learned single Judge in Writ Petition No.4360 of 2009on the file of this Court filed under Article 226 of Constitution ofIndia for issuance of Writs of Mandamus to direct the respondent tofurnish a refund voucher in accordance with the final orders ofassessments in respect of the assessment year TNGST 1996-97,1997-98,1998-99,1999-2000,2000-01 and also pay interest at 12 per cent perannum on the amounts of refund due from the due dates till the dateof payment.For appellant : Mr.J.Ganesan, Govt. Advocate (Taxes)For respondent: Mr.K.J.ChandranJUDGMENT(Judgment of the Court was delivered by S.J.Mukhopadhaya,J)These appeals have been preferred by the Revenue against theorder dated 21.4.2009, whereby the learned Judge directed the Revenueto issue refund vouchers atleast for the admitted amount ofRs.6,50,58,905/- within a stipulated period. 2. The main plea taken by the Revenue is that the Revenue havingtaken steps for suo motu revision against the original order of theassessment on the ground of escaped turnover, it was not open forthe Court to direct the refund till the disposal of the such revisionpetition.3. Per contra, accordingly to the learned counsel for therespondent-assessee, for the assessment years in question, theRevenue has no jurisdiction to initiate suo-motu revision undersection 16 of Tamil Nadu General Sales Tax Act (for short, 'the TNGSTAct').4. In reply, the learned counsel for the appellant-Revenuesubmitted that challenging the jurisdiction of the assessingauthority to initiate suo-motu revision for the assessment years inquestion, the Writ Petitions were preferred by the assessee and thisCourt having directed the assessee to raise all the questions beforethe assessing officer, this question should be left open.5. We have heard the learned counsel for the parties and perusedthe records.6. It appears that the assessment for the years 1996-1997 to2000-2001 was made on 08.10.2002. The respondent-assessee thereafterfiled an application under section 55 of the TNGST Act, forrectification, which was ordered on 06.03.2003. Thereafter, theassessee preferred appeal(s). In the said appeals, while for theassessment years 1996-1997 to 1998-1999, the appeal(s) was remanded https://hcservices.ecourts.gov.in/hcservices/ on 9.1.2004, no interference was made so far as the assessment years1999-2000 and 2000-2001 are concerned. On remand, the revisionalorder of assessment was passed on 29.10.2004 in respect of theassessment years 1996-1997 to 1998-1999, against which, anotherappeal(s) was preferred by the assessee and the said appeal waspartly dismissed and partly remanded on 27.07.2007 and in view of thepart order of remand, the assessing authority gave effect to the sameon 15.05.2009. The suo-motu revision thereafter started in May 2009under Section 16 of the TNGST Act. 7. It is not in dispute that in respect of the assessment years1996-1997 to 2000-2001, assessment orders were passed and theassessing authority found that a total sum of Rs.7,94,64,051/- wasdue to be refunded to the assessee. Though such an amount of refundwas found to be due to the assessee and Form-C was also issued, therefund was not given, forcing the assessee to move the WritPetitions.8. Before the learned single Judge, on instructions, thelearned Additional Government Pleader appearing for the Revenue, tooka plea that a further sum of Rs.1,44,05,146/- has to be adjustedtowards the arrears of penalty, leaving a net amount ofRs.6,50,58,905/- as the excess tax liable for refund. But the Revenuerefused to refund even the said amount on the ground that the amountcould be adjusted against the future assessment.9. In the above background, the learned single Judge, in theabsence of Rule to adjust the amount against the future assessment,directed the Revenue to refund the amount of Rs.6,50,58,905/-. Primafacie, we find no illegality in the order which was passed on thebasis of the submissions made before the Court. Before the learnedsingle Judge, it was not even mentioned that the assessing authorityintends to proceed with suo-motu revision under Section 16 of theTNSGST Act against the assessee. The suo motu revision was initiatedin May 2009 and therefore, on the basis of a subsequent suo moturevision petition, the order of the learned single Judge cannot beheld to be illegal.10. Now, as far as the question of adjustment of the amountagainst the future assessment, is concerned, in the absence of anylaw, it is not open for the Revenue to state that out of the admittedamount due to be refunded, they could keep the amount with them foradjustment against future assessment. The learned counsel appearingon behalf of the Revenue submitted that the Court should not decidethe question of jurisdiction of the assessing authority to startsou-motu revision under Section 16 of the Act. But, such submissioncannot be accepted, in view of the fact that the Revenue is with-holding the amount on the ground of initiation of sou-motu revisionunder Section 16 of the TNGST Act read with Rule 18(7) of TNGSTRules, 1959. https://hcservices.ecourts.gov.in/hcservices/

11. The learned counsel appearing on behalf of the assesseerightly pointed out that the assessment relates to the period 1996-1997 to 2000-2001. The period of limitation as was prescribed underSection 16(1)(a) of the TNGST Act was amended with effect from01.07.2002. The said amendment cannot be given effect in regard tothe assessment years 1996-1997 to 2000-2001. In the amended Section16(1)(a) of the TNGST Act, limitation period of 5 years wasprescribed "from the expiry of the year to which the tax relates". 12. In the present case, as the expiry of the year relates to31.03.2001, the limitation for exercising the power under Section 16(1)(a) comes to an end on 31.03.2006. Thereafter, with regard to theold assessment year 1996-1997 to 2000-2001, it is not open for theassessing authority to make the assessment on the ground of escapedturnover under Section 16 of the TNGST Act on the basis of thesubsequent amendment made under Section 16(1)(a). 13. However, as we find that in the meantime, on the basis ofthe appeal(s) preferred by the assessee, a revised order ofassessment has been passed on 29.10.2004 and on the basis of thesubsequent assessment, Form-C has also been issued, we modify theimpugned order of the learned single Judge, dated 21.4.2009, bydirecting the appellant-Revenue to issue refund vouchers atleast forthe admitted amount(s), along with statutory interest, as shown inForm-C issued pursuant to the revised order of assessment dated29.10.2004, as partly modified by the appellate authority, vide order27.7.2007 read with order dated 15.5.2009, within a period of twoweeks, from the date of receipt of application along with a copy ofthis judgment. 14. The Writ Appeals stand disposed of with the aforesaidobservations. No costs. The Miscellaneous Petitions are closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarkplToThe 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. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr.K.J.Chandran,Advocate,SR.36619+ 2 cc to the Government Pleader,SR.36828,37079Writ Appeal Nos.703 to 707 of 2009KA(CO)EM/25.8.09