TMI Blog2013 (3) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... e the plea of limitation when the matter had been remitted back by this Court, by its order, dated 30.1.2012. It cannot be claimed that the period of limitation would not apply in respect of cases where an order had been passed remitting the matter back to the authority concerned for considering it afresh. In fact, the orders passed by the respondent, on 3.9.2009, had been set aside by this Court, by its order, dated 30.1.2012, as such orders could not be sustained in the eye of law. Even though this Court had remitted the matter back to the respondent after setting aside the impugned orders, dated 3.9.2009, mainly on the ground that no notice had been issued to the petitioner before passing the said order, the issue relating to limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an order, under Section 12 of the Tamilnadu General Sales Tax Act, 1959, dated 23.9.2004. 3. It has been further stated that the respondent had passed an order revising/rectifying the taxable turnover to Rs.1,09,71,200/-, taxable at 4%, under Section 7-A(1)(c) of the Tamilnadu General Sales Tax Act, 1959, and had demanded the payment of Rs.4,38,348/-, as tax. In the order, dated 10.6.2009, there was a reference to the notice, dated 20.2.2006, and the objections filed by the petitioner, dated 29.3.2006. The notice and the objections referred to in the said order related to the assessment, in respect of CST No.424465/2004-2005. There was no reference to the assessment, in respect of TNGST No.2740924, relating to the assessment year 2003-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad committed a serious error of law by issuing a notice and by passing an order based on the said notice, under the Central Sales Tax Act, 1956, and thereafter, substituting the said notice by issuing an order to rectify the mistake and treat the notice as though it had been issued under the provisions of the Tamilnadu General Sales Tax Act, 1959. In fact, there can be no such substitution, by invoking the powers vested with the authority concerned, under Section 55 of the Tamilnadu General Sales Tax Act, 1959. As such, the said proceedings is arbitrary and illegal as it is not supported by the authority of law. In such circumstances, the petitioner had filed a writ petition before this Court, in W.P.No.592 of 2012, challenging the orders, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CST Assessment No.424465/2003-2004, as the reference number, instead of showing the TNGST Assessment No.2740924/2003-2004. Such an order cannot be passed by the respondent, as it has no legal basis. No proper explanation has been given for the preliminary objection taken by the petitioner that the notice, dated 20.3.2012, is bad in the eye of law, as it had been issued beyond the limitation period of five years from the date of the assessment order, which is 23.9.2004. In fact, the respondent had attempted to take shelter on the basis of the orders, dated 3.9.2009. However, as the orders, dated 3.9.2009, had been quashed by this Court the respondent cannot be permitted to take shelter under the said order. 7. It has been further state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not have the power or the authority to pass the impugned order. Therefore, the impugned notice, dated 20.3.2012, issued by the respondent, and the consequential order, dated 30.5.2012, are liable to be set aside. 9. The learned counsel appearing on behalf of the petitioner had relied on the decision of this Court, in Venkateswara Co. Vs. Deputy Commercial Taxes Officer (STC 133 606), wherein it had been held that the respondent cannot be clothed with the jurisdiction to exercise the power of revision, under Section 16 of the Tamilnadu General Sales Tax Act, 1959, beyond the period of limitation, merely because the appellate authority concerned chose to direct the respondent to issue a fresh notice. 10. Per contra the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in support of his contentions: 1. Director of Inspection of Income-Tax (Investigation), New Delhi and another Vs. Pooran Mall and Sons and another (96 ITR 360). 2. Deputy Commissioner of Commercial Taxes, Tiruchirapalli Division, Tiruchirapalli Vs. A.Abdul Shukoor and Company (39 STC 137). 12. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondent, and on a perusal of the records available and on considering the decisions cited supra, this Court finds it appropriate to set aside the impugned notice and the consequential order passed by the respondent, on 30.5.2012. When this Court, had set aside the orders, dated 3.9.2009, issued by the respondent and remitted the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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