J R KAMATH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This order shall dispose of writ Petition Nos. 14457 and 14458 of 1991. While in Writ Petition No. 14457 a communication by the respondent dated 31-7-1990 is under challenge in Writ Petition No. 14458 of 1991, a Government order - G.O.Ms. No. 1165 dated 27-7-1987 is challenged and more particularly its Clause 5 (iii) to a limited extent.

(2.) Few facts would be necessary for understanding the exact controversy. While petitioners hold urban lands in Survey Nos. 705, 706 and 158/21 in Sanganur village, Coimbatore District, petitioner's firm M/s. Jaya and Co. is the owner of urban land in Survey Nos. 1457/1B and 1475/1J at Pulikulam village, Coimbatore District. It is the case of the petitioners that in pursuance of the demand made by the Assistant Commissioner, Urban Land Tax, petitioners have paid a total sum of Rs. 67,238.46 towards the Urban Land Tax for the fasli years 1385 to 1394. The assessment was made vide order dated 29-6-1983. It is the petitioners' case that they have actually paid this amount. The petitioners then claimed that they filed an appeal, and those appeals were allowed by order dated 31-12-1984 by the Assistant Commissioner, Urban Land Tax by which he had set aside the orders of assessment passed by the first authority. A revised order came to be issued. however, in the meantime the Department had already collected a total sum of Rs. 67,238.46 in the terms of the original orders. As per the revised assessment, the petitioners claim that their total tax due for fasli years 1385 to 1399 came to Rs. 10,035/- as against their lands and Rs. 32,484/- against the firm and therefore it was obvious that the petitioners were entitled to a refund of Rs. 24,719.46. The petitioners therefore sent a notice through an advocate for this refund vide notice dated 14-7-1990 and claimed interest thereon at 18% per annum from 13-12-1984. This request was rejected on the ground that the retention of excess tax amount was authorised by the provisions of G.O.Ms. No. 1165 dated 27-7-1987 and therefore, the petitioners have challenged that communication as also the G.O.Ms. No. 1165 dt. 27-7-1987.

(3.) The main case of the petitioners is that the authorities could not have issued the said Government order directing the adjustment of the refund against the payment of tax for the future fasli years. On merits also the petitioners' case is that the communication dated 30-7-1990 is wholly incorrect because the petitioners had already made the adjustments for the past years and there was no question of any adjustment being made for the future years, which adjustment was sought to be done by the authorities wholly relying on clause 5(iii) of the said Government Order. Learned counsel for t he petitioner says that initially G.O.Ms. No. 1165 itself is wholly ultra vires that Act as also the other Constitutional Provisions, because there is no scope for retaining the refund under any of the enactments and therefore such retention, which was authorised by the said Government Order, would be without any valid law. In so far as the merits are concerned, the petitioners point out that there was no question of retaining any amount. The learned counsel for the petitioners also attacks the said Government Order on the ground of arbitrariness and unreasonableness and therefore says that G.O. Ms. No. 1165 was clearly offending their rights under Article 14 of the Constitution of India.