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Judgment
The Honourable Mr. Justice Vinod K. Sharma
The Petitioner has approached this Court, with a prayer for issuance of writ in the nature of certiorari, to quash the Pre-revision notice dated 7th
July 2008, for revising sales tax assessment for the year 2001-02.
The assessment order in the case of the Petitioner for the year 2001-02 was passed by the Respondent on 30.05.2003 wherein the Petitioner
was given credit of Rs. 1017/- .
The assessment was thereafter revised for the year 2001-02 vide order 2nd of August 2004 by recording that the dealer had paid the tax.
Hence No. penalty was leviable u/s 16 of Tamil Nadu General Sales Tax Act, 1959.
The Petitioner, thereafter was issued with the impugned pre-revision notice, wherein, the total taxable turn over was proposed to be Rs.
78,36,171/- (Rupees seventy eight lakhs thirty six thousand one hundred and seventy one)
The impugned pre-revision notice has been challenged by the Petitioner, on the ground that the impugned notice is barred by limitation as
prescribed u/s 16(1)(a) of the Tamil Nadu General Sales Tax Act, 1959 which reads as follows:
Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may,
subject to the provisions of Sub-section (2), at any time within a period of five years from the [date of order of the final assessment by the
assessing authority] determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover
after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment.
The other contention of the Learned Counsel for the Petitioner, is that the impugned pre-revision notice is without jurisdiction as there is No.
jurisdiction with the Respondent, as only one revision is permissible under the Act.
The learned Additional Government Pleader however, contended that the impugned pre-revision notice cannot be faulted with, since the revised
assessment order was passed on 2nd August 2004, whereas the pre-revision notice was issued on 07.07.2008, i.e within 5 years of passing of an
order. It is therefore not open for the Petitioner to challenge the notice on the ground of limitation and otherwise also it is open to the Petitioner to
raise all these pleas before the competent authority in response to the notice.
On consideration, I find force in the contention raised by the Learned Counsel for the Petitioner.
If the impugned notice is to be read as pre-revision notice of original assessment, then limitation is to be taken from the date of passing of the
original order i.e 30th May 2003, the impugned notice was issued beyond the period of 5 years from the date of passing of the order, therefore
cannot be sustained in law, being barred by limitation.
In case, the limitation is counted from 2nd of August 2004, as contended by the learned Additional Government Pleader, in that case also, the
impugned notice cannot be sustained, for want of jurisdiction, as the Respondent does not have any jurisdiction, to revise assessment under notice,
as there is No. provision of second revision by the same office.
The contention of the learned Additional Government Pleader, that these points can be raised before the authority, though forceful, but cannot
be looked into at this stage, as the writ petition was admitted in the year 2008, and No. useful purpose will be served to relegate the Petitioner to
the authority especially when notice is without jurisdiction.
For the reasons stated above, the writ petition is allowed. The impugned pre-revision notice dated 7th July 2008 is ordered to be quashed.
Consequently, connected M.P.1 of 2008 is closed. No. costs.