TMI Blog2017 (2) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... the present impugned order has been passed levying penalty against the petitioner, certainly, the limitation point raised therein under the proviso, which has been subsequently inserted in the year 2004 shall be taken into account and the same can be treated as a mandatory one - the present order, which is impugned herein, since admittedly, initiated and passed only after the limitation period of five years ie., on 09.03.2010 and ended on 16.07.2010, whereas the limitation was over on 31.03.2011 itself for the purpose of assessment year 1995-96. Therefore, this Court has no hesitation to hold that the impugned order is not sustainable because of the limitation provided as per Section 22(2) proviso. Petition allowed - decided in favor of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h) Madurai, in MTSA No.246/05. The said appeal filed by the Department was dismissed by the Appellate Tribunal vide order dated 22.02.2006. Thereafter, the Department did not prefer any revision before this Court and therefore, the matter has become final. Therefore, pursuant to the order passed by the appellate Tribunal dated 22.02.2006, the respondent passed an order on 21.06.2007 giving effect to the said order of the lower appellate authorities, wherein, the excess tax paid by the petitioner was shown as ₹ 1,74,094/- and refund order to that effect was also issued to the petitioner, based on which, the petitioner also obtained refund of the said amount from the treasury. 3. Only thereafter, after long years, ie., on 09.03.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the petitioner would heavily rely upon the provisions of 22(2) proviso, which reads thus: 22.(2) If any person or registered dealer collects any amount by way of tax or purporting to be way of tax in contravention of the provisions of sub-section (1), whether or not any tax is due from such person or dealier under this Act in respect of the transaction in which he collects such amount, the assessing authority may, after giving such person or dealer a reasonable opportunity of being heard, by order in writing impose upon him by way of penalty [a sum which shall be,- (i) where the excess amount has been collected in the bonafide belief that it had to be collected, one hundred per cent of the amount collected; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was proposed under Section 9(2) of the CST read with Section 22(2) of the TNGST Act. Moreover, the said proviso, which was heavily relied upon by the petitioner side, was inserted only in the year 2004 by Tamil Nadu Act 19 of 2004 and this case of the assessment year 1995- 96, which is a past case and moreover, as against the original assessment year, appeals were preferred by both sides and as against the appellate order, in respect of the allowed portion, Department preferred further appeal and the same was decided, of course, against the department only on 22.02.2006. Therefore, the five years limitation would start only from that date and not from the cut off date for the assessment year 1995-96 and therefore, notice dated 09.03.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period, where if any writ petition is filed before this Court, as against the dismissal of the appeal by the Tribunal and in case, where it will take years together for disposal of such kind of writ petitions, the limitation point can also be stretched upon till the disposal of the writ petition. Therefore, this Court does not agree with the said argument advanced on behalf of the respondent that the five years limitation would start only from 22.02.2006, where appeal filed by the department was dismissed by the Sales Tax Appellate Tribunal. 12. The other reason advanced by the learned Additional Government Pleader for the respondent is that the impugned order was passed not only under Section 22(2) of the Act, but also under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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