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T.M.N.M. Somasundara Nadar and Sons Vs. the State of Tamil Nadu - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 343 of 1975 (Revision No. 59 of 1975)
Judge
Reported in[1980]45STC23(Mad)
AppellantT.M.N.M. Somasundara Nadar and Sons
RespondentThe State of Tamil Nadu
Appellant AdvocateC. Natarajan, Adv.
Respondent AdvocateAdditional Government Pleader
DispositionPetition dismissed
Cases ReferredJ.K. Kapur v. State of Gujarat
Excerpt:
- .....turnover of rs. 20,41,209.58 and rs. 19,69,422 respectively. the turnover assessed included inter-state sales of cardamom to the extent of rs. 8,08,625.70. the assessing authority, while finally assessing the assessee under the tamil nadu general sales tax act, worked out the purchase value of cardamom involved in the inter-state sales at rs. 5,26,768 and allowed a refund of tax of rs. 10,535.36 under section 4-a of the general sales tax act. the assessment under the state sales tax act itself came to be made on 3rd january, 1967, and the assessment under the central sales tax act was made on 7th january, 1967. the refund under section 4-a was granted-on 20th march, 1967. on 20th march, 1971, a notice was given for reopening the assessment on the ground that a larger refund than what.....
Judgment:

Sethuraman, J.

1. This revision arises out of the order of the Sales Tax Appellate Tribunal dated 22nd March, 1975, in Madurai Tribunal Appeal No. 381 of 1974. The assessee had filed A-4 returns. For the assessment year 1965-66, it was finally assessed under the Central Sales Tax Act on a total and taxable turnover of Rs. 20,41,209.58 and Rs. 19,69,422 respectively. The turnover assessed included inter-State sales of cardamom to the extent of Rs. 8,08,625.70. The assessing authority, while finally assessing the assessee under the Tamil Nadu General Sales Tax Act, worked out the purchase value of cardamom involved in the inter-State sales at Rs. 5,26,768 and allowed a refund of tax of Rs. 10,535.36 under Section 4-A of the General Sales Tax Act. The assessment under the State Sales Tax Act itself came to be made on 3rd January, 1967, and the assessment under the Central Sales Tax Act was made on 7th January, 1967. The refund under Section 4-A was granted-on 20th March, 1967. On 20th March, 1971, a notice was given for reopening the assessment on the ground that a larger refund than what was due to the assessee had been granted and an order was passed on 29th March, 1971. It is this order which came up before the Sales Tax Appellate Tribunal on 13th September, 1972. The Tribunal pointed out that if the order of refund passed under Section 4-A of the General Sales Tax Act on 20th March, 1967, was incorrect and improper, the proper course would be to initiate action to set right that order. The Tribunal, therefore, did not sustain the reopening of the assessment by the order dated 29th March, 1971, and cancelled it.

2. After the said order dated 13th September, 1972, the Joint Commercial Tax Officer I, Virudhunagar, took proceedings for revision of the order dated 20th March, 1967, and he held that the sum of Rs. 5,26,768 was liable to be taxed at the rate of 2 per cent and he therefore raised a demand for Rs. 10,535.36. In effect, the earlier order under Section 4-A came to be set aside by the new order. The assessee appealed to the Appellate Assistant Commissioner. There were two objections before the Appellate Assistant Commissioner: one, as regards the jurisdiction of the Joint Commercial Tax Officer to pass the order dated 17th April, 1974, and, secondly, on the merits. As regards jurisdiction, the Appellate Assistant Commissioner agreed with the Joint Commercial Tax Officer, but, as regards the merits, the matter was remanded to the Joint Commercial Tax Officer for scrutinising the sale bills and other materials. Against this order there was an appeal to the Tribunal. The Tribunal confirmed the order of the authorities below. The assessee has come up in revision to this Court.

3. The learned counsel for the assessee submitted that the Joint Commercial Tax Officer has no power to revise or set aside his order dated 20th March, 1967, by the impugned order dated 17th April, 1974. According to the learned counsel, there were other provisions available for taking action in case the order under Section 4-A was not proper. He referred us to Section 16 of the Act, which permitted an assessment being reopened within a period of five years from the close of the assessment year. He referred us also to Sections 32 and 34, which permitted the Deputy Commissioner and the Board of Revenue to revise the order of any subordinate authority including an order under Section 4-A, within a period of five years from the date of the order sought to be revised. Reference was also made to Section 55 of the Act, which provided for rectification of an apparent error within a period of three years from the date of the order. In the submission of the learned counsel, if the Joint Commercial Tax Officer felt that the earlier order dated 20th March, 1967, was not proper, he should have taken proceedings under Section 16 or Section 55 of the General Sales Tax Act or he should have referred the matter under Section 32 or Section 34 to the revising authorities, namely, the Deputy Commissioner of Sales Tax or the Board of Revenue. His point is that the power exercisable under Section 4-A was exhausted by its exercise on 20th March, 1967, in the present case. The correctness of these submissions requires to be gone into.

4. In Thirumwthi Chettiar v. State of Madras [1968] 21 S.T.C. 489, the question as to whether a period of limitation existed in relation to the claim for refund was gone into. After reierring to the provisions of the Act and the Rules, it was held that as the Act did not prescribe any period of limitation for refund of tax, the period of limitation under the Rules, namely, Rule 23(1) of the Madras General Sales Tax Rules, 1959, in force then, was invalid and ultra vires. Therefore, an assessee would have no time-limit within which he could approach the assessing authority for an order under Section 4-A of the State Act granting refund of the tax already paid.

5. Section 4-A(1) provides: 'Where a tax has been levied and collected under Section 4 or 7-A in respect of the sale or purchase of declared goods and such goods are sold in the course of inter-State trade or commerce and tax has been paid under the Central Sales Tax Act, 1956 (Central Act 74 of 1956), in respect of the sale of such goods in the course of inter-State trade or commerce, the tax levied and collected under Section 4 or 7-A shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be prescribed.' Sub-section (2) of Section 4-A provides that 'where a tax at the point of last purchase in the State has been levied and collected under this Act in respect of goods liable to tax at such point and where the said purchase ceases to be the last purchase in the State by reason of a subsequent purchase of such goods by another dealer in the State, the tax so levied and collected shall be refunded to the dealer concerned in such manner and subject to such conditions as may be prescribed'. It may be seen that there is a difference between Sub-section (1) and Sub-section (2) of Section 4-A. In the case of Sub-section (1), one has to prove that the tax has been levied and collected under the State Act in respect of declared goods, and the said goods should be sold, in the course of inter-State trade or commerce and taxed under the Central law. The person who effected the sale in the course of inter-State trade or commerce should also have paid the tax in respect of the goods to his seller. Section 4-A(1) therefore contemplates reimbursement of the said tax to the person who effected the sale in the course of inter-State trade or commerce.

6. It is true there are other provisions under which the Joint Commercial Tax Officer himself can take action, like Section 16 or Section 55, by reopening the assessment or by rectifying the order passed under Section 4-A. It is also true there are other provisions like Sections 32 and 34, which permit a suo motu revision of the said orders, by other authorities. However, the question is whether, on the language of Section 4-A, it lies beyond the power of the assessing authority to recall the earlier order which he had passed when he finds that the refund had been wrongly granted. There is nothing in the language of Section 4-A which prevents a repetitive exercise of the power available to him. Under the Tamil Nadu General Clauses Act, Section 13 provides that where the Act confers a power or imposes a duty, then the power may be used and the duty may be performed from time to time as occasion requires. We have already pointed out the decision of this Court that there is no time-limit provided for making an application for refund. Repeated applications for refund would be possible if it is remembered that Section 4-A(1) contemplates levy and collection of tax under the State Act as a condition precedent to reimbursement. It is possible that the trader who effected inter-State sales may himself be subjected to more than one assessment -- there may be reassessments -- on different dates. The application for reimbursement would thus have to be after the assessments and payments of tax. Thus, the application may have to be made from time to time, on several dates, leading to the need for more than one order. The view that the power is exhausted, if used once, would result in palpable injustice. Such a construction cannot be accepted unless the language clearly points to such a construction. Section 4-A does not suggest such a construction. If a power could be exercised more than once in favour of the assessee, such a power could also be exercised more than once for the purpose of seeing that any erroneous order of refund is not left as it is. Thus, there is nothing wrong in envisaging that the assessing authority also would have a similar power to look into his own order and take remedial action in respect of any mistakes in his order. It is not as if the order of the assessing authority, by having a second look at the earlier order and recalling it, is likely to lead to any inequity or injustice. If it works out any injustice to any person affected by it or if any person finds that he is aggrieved by it, he can always take proceedings by filing an appeal as has already been done in the present case.

7. There is, however, one conceivable limit to the exercise of this jurisdiction more than once. The assessing authority cannot, for instance, recall an ordef or make amendments to any order which he had already passed when the order is the subject of an appeal or revision. He cannot also revise an order in so far as it has been confirmed or varied on revision. But, nothing would stand in the way of his entertaining an application under Section 4-A in respect of fresh claims, as in regard to such fresh claims, the order would be an independent one subject to a fresh appeal or revision. The power to amend would only extend to those cases where the order is left intact by the assessee not having taken any proceedings against it or any revising authority not having taken any action for purpose of revision.

8. The learned counsel for the assessee referred us to a decision in J.K. Kapur v. State of Gujarat (1) A.I. 11. 1974 B.C. 1996. under the Bombay Entertainments Duty Act, wherein it was held that a power to reassess must be specifically found in the statute. This is not a case of reassessment, but a case where the reimbursement was considered to have been wrongly granted. The said decision has no application.

9. As the question as to whether the order passed on 17th April, 1974, is proper or not on merits is the subject-matter of remand, we should not be taken as pronouncing on the merits of the said order. The assessing authority, after examining the question as to whether there is any error in the said order, shall pass appropriate orders taking into account the submissions of the assessee. - We would. only hold now that the proceedings are not without jurisdiction. The revision fails, and will stand dismissed. The revenue will be entitled to its costs. Counsel's fee Rs. 250.


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