At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE P. JYOTHIMANI & THE HONOURABLE MR. JUSTICE P.P.S. JANARTHANA RAJA
For the Petitioner: P. Rajkkumar, Advocate. For the Respondent: R. Sivaraman, Spl. Govt. Pleader.
(PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records of the respondent pertaining to the proceedings dated 17.09.2001 in SMR No.182 of 1997 respectively and quash the same as illegal.)
(Order was made by P. JYOTHIMANI, J.)
1. This writ petition has been filed by the assessee challenging the order passed by the respondent in exercise of its suo motu power of revision, in respect of the business of the petitioner relating to circulation sales for the assessment year 1976-77.
2. Regarding the assessment year 1976-77 as against the levy of tax by the Assessing Officer on circulation sales, by order dated 31.01.1978, the appeal of the assessee filed before the Appellate Assistant Commissioner was allowed on 21.02.1979. In fact, the Appellant Assistant Commissioner while passing the orders in the appeal in favour of the assessee has relied upon the judgment of this Court dated 03.03.1976 in Sri Srinivasa Sales Circulation VS State of Tamil Nadu re[ported in (1976) Vol.38 STC page 359. As against the said judgment of the Madras High Court dated 03.03.1976, an appeal has been filed to the Supreme Court in the year 1977 and ultimately, the Hon'ble Apex Court has allowed the appeal filed by the Government by judgment dated 04.10.1996 reported in (1996) Vol.103 STC page 485 holding against the assessee. In the meantime, as per the original Section 34(2) of the TNGST Act, the period of limitation to pass orders expires on 21.02.1984. The amendment Act 22 of 1982 was brought in, by which, an amendment was effected to Section 34 of the TNGST Act with effect from 01.11.1982. Under the amended provision to Section 34, instead of the period of limitation of five years being given for the purpose of passing orders, the term 'initiation' has been used. In addition to it, a proviso has been incorporated under the amended Act to the effect that the period from the date of judgment of the High Court till the date of judgment by the Supreme Court should be excluded for the purpose of calculating the limitation while passing orders. The Government has issued a show cause notice after the judgment of the Supreme Court in reversing the judgment and the show cause notice in both the cases was issued against the petitioner on 09.06.1997. Ultimately, the impugned order came to be passed by the respondent by suo motu revising the earlier order of the Appellant Assistant Commissioner dated 21.02.79 and imposing the tax liability on the assessee and that has been challenged by the petitioner in this writ petition.
3. We have heard the learned counsel for the petitioner and the learned Special government Pleader and we have given our anxious though to the issues involved in these cases.
4. In this case, the period of limitation expires on 21.02.1984. The amendment Act 22 of 1982 came into force on 01.11.1982. Before the expiry of the limitation period prescribed under Section 34(1) of the Act, the said Act was amended on 01.11.1982 itself. Since the amendment has come into force even before the expiry of five years even under the old Section 34(1), the proviso would apply to the facts of the present case. We find no fault in the
Please Login To View The Full Judgment!
suo motu power exercised by the respondent under the impugned order. Therefore, the exercise of power by the respondent cannot be stated to be either improper or illegal. we find no reason to interfere with the order impugned in this writ petition. Accordingly, this Writ petition stands Dismissed. allowed and the impugned orders are set aside. No costs.