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Judgment
Srinivasan, J.—This second appeal has to be allowed on a very short ground. I do not think it necessary to refer to the various contentions
urged by Learned Counsel for the appellant in the view I am taking as to the maintainability of the suit. This suit is for recovery of the amount,
which is said to have been refunded to the defendant/appellant wrongly. The refund has been a consequence of an assessment order made by the
Deputy Commercial Tax Officer, Kovilpatti-I in assessment No. C.S.T. 1433/64-65 dated 15.12.1973. As per that assessment, the defendant got
the refund of the excess paid by him by way of advance. It is not necessary to consider the reasons for the refund or the assessment made by the
Deputy Commercial Tax Officer. Suffice it to point out that the order of the Deputy Commercial Tax Officer, which has been marked as Ex. A1 is
an order of assessment-contemplated by the Tamil Nadu General Sales Tax Act. By filing this suit, the respondent is challenging the validity of the
said order of assessment. No doubt, the prayer is for recovery of the amount refunded. But that is based on the premise that the order of
assessment made by the Deputy Commercial Tax Officer, Kovilpatti is erroneous and unsustainable in law.
S. 51(a) of the Act bars suits and proceedings to set aside or modify assessment made under the Act, except or provided in the Act. It reads
thus:-
Bar of suits and proceedings to set aside or modify assessment except as provided in this Act (a) No suit or other proceedings shall except as
expressly provided under this Act be instituted in any court to set aside or modify assessment made under this Act.
This suit being one in essence to set aside the assessment made by the Deputy Commercial Tax Officer under Ex. A1 to direct the defendant to
pay the amount refunded to him, is directly covered by the provisions of S.51 of the Act and, therefore, not maintainable.
Reliance is placed on S.9 of the Central Sates Tax (Amendment Act 28 of 1969. S.9 of Act 28 of 1969 reads as follows:-
Validation of assessments etc. �(1) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the
contrary any assessment re-assessment, levy or collection of any tax made or purporting to have been made, any action or thing taken or done in
relating to such assessment, reassessment, levy or collection under the provisions of the Principal Act before the 9th day of June, 1969 shall be
deemed to be as valid and effective as if such assessment, re-assessment, levy or collection or action or thing had been made, taken or done under
the Principal Act as amended by this Act and accordingly..
(a) all acts, proceedings or things done or taken by the Government or by any officer of the Government or by any other authority in connection
with the assessment, re-assessment, levy or collection of such tax shall, for all purposes, be deemed to be, and to have always been done or taken
in accordance with law;
(b) no suit or other proceeding shall be maintained or continued in any court or before any authority for the refund of any such tax; and
(c) no court shall enforce any decree or order directing the refund of any such tax.
For the removal of doubts, it is hereby declared that nothing in sub-S.(1) shall be construed as preventing any person- @JO0300 = (a) from
questioning in accordance with the provisions of the Principal Act, as amended by this Act, any assessment, re-assessment, levy or collection of
tax referred to in sub-S.(1) or
(b) from claiming refund of any tax paid by him in excess of the amount due from him by way of tax under the Principal Act as amended by this
Act.
It is argued that by virtue of the said section, assessment made earlier imposing higher tax on the appellant was valid and the order made by the
Tribunal setting aside such assessment was invalid. It is contended that the Deputy Commercial Tax Officer''s order dated 15.12.1973 under Ex.
A1 is only consequential to the Tribunal''s order and, therefore, it can be ignored because of the provisions of S.9 of Central Act 28 of 1969.I do
not agree. The said section contemplates validation of assessment made before the 9th day of June, 1969. In the present case, after the Act was
passed, assessment has been under Ex. A1 dated 15.12.1973. This is not an assessment made before the 9th day of June, 1969, with the result
S.9 of Central Act 28 of 1969 will not be attracted to the assessment in question. Consequently, the contention based on S.9 of the Act is
unsustainable. The only result that follows is the dismissal of the suit instituted by the respondent herein for recovery of money from the appellant on
the footing that the refund made to him was erroneous, as not maintainable. The second appeal is allowed. The judgments and decrees of the
courts below are set aside. O.S. No. 298 of 1977 is dismissed. The respondent shall pay costs to the appellant in this second appeal. The
respective costs incurred by the parties in the courts below shall be done by them.