STANDARD MOTOR PRODUCTS OF INDIA LIMITED Vs. DEPUTY COMMISSIONER OF COMMERCIAL TAXES MADRAS NORTH DIVISION MADRAS 1

JUDGEMENT

(1.) THIS is a writ petition filed for the issue of a writ of certiorarified mandamus calling for the records of the second respondent in his proceedings No. L. 750/80 (B3)/fn 43004/74-75, and for quashing the order therein dated 22nd March, 1982 and for directing him to dispose of the petition for rectification of an error apparent on the face of the order of assessment dated 28th February, 1977 made in TNGST. 43004/74-75. The following are the averments in the accompanying affidavit sworn to by the Secretary and Financial Controller of the petitioner-firm. The petitioner is a registered dealer under the provisions of the Tamil Nadu General Sales Tax Act, 1959 and is an assessee on the file of the second respondent. The petitioner among other things manufactures and market Standard-20 automobile vehicles run by diesel. The petitioner sold to the Agarwal Relief Trust, Madras , for use in the Agarwal Hospital, a Standard-20 ambulance van. The ambulance van in question was sold by the petitioner to be union Co. (Motors) Private Ltd. , Madras, as per the petitioner's invoice No. TM. 47/74-75 and the said M/s. Union Co. (Motors) Private Ltd. , Madras, in turn sold the very same Standard-20 ambulance van to the Agarwal Relief Trust, Madras, for use in the Agarwal Hospital. The said Standard-20 ambulance van had engine TM 10169 and chassis No. 6336. In the petitioner's invoice sales tax at 15 per cent on the sales price of Rs. 39, 431. 25 amounting to Rs. 5, 914. 69 and surcharge at 5 per cent on the sales tax amounting to Rs. 295. 73 totalling in all to Rs. 6, 210. 42 was collected and remitted by the petitioner duly to the second respondent. The petitioner also reported the said sale turnover in its monthly return filed before the second respondent. The petitioner also was assessed finally under the Act for the assessment year 1974-75 by the second respondent by an order dated 28th february, 1977. The sale price of Rs. 39, 431. 25 was subjected to sales tax at 15 per cent and surcharge at 5 per cent on the sales tax. On certain representations made by the Agarwal Relief Trust which is a charitable institution, the Government of Tamil Nadu issued a statutory notification under section 17 (1) of the Act exempting the sale of Standard-20 ambulance van made by it to M/s. Union Co. (Motors) Pvt. Ltd. , Madras, who in turn sold the same on 20th January, 1975 to the Agarwal Relief Trust, Madras, for use in the Agarwal hospital, Madras. The following is the relevant portion of the said statutory g. O. P. No. 2104, Commercial Taxes and Religious Endowments, dated 14th december, 1977 published in the Tamil Nadu Government Gazette in Part II, section 1, dated 4th January, 1978. "no. II (1) CTRE/2/78.- In exercise of the powers conferred by sub-section (1) of section 17 of the Tamil Nadu General Sales Tax act, 1959 (Tamil Nadu Act 1 of 1959), the Governor of Tamil Nadu hereby makes an exemption in respect of the tax payable under the said Act by the Standard motor Products of India, Madras, on the sale of a Standard-20 ambulance van to the Union Motors Ltd. , Madras, who in turn sold the same on the 20th January, 1975, to the Agarwal Relief Trust, Madras, for use in the Agarwal hospital. " * The petitioner came to know of the exemption only subsequently, i. e. , subsequent to the date of its assessment, since the notification granting statutory exemption itself was published only subsequent to the date of assessment. Thereafter the petitioner duly passed a credit note cm. 135/77-78 dated 31st March, 1978 in favour of M/s. Union Co. (Motors)Private Ltd. , Madras, and refunded the sales tax and surcharge of Rs. 6, 210. 42 collected in its invoice pertaining to the transaction. The petitioner also by its letter reference B. S. T. 52. 80 dated 10th March, 1980 requested the second respondent to revise the assessment for the year 1974-75 and send an order of refund at the earliest. Along with the said letter, the petitioner also enclosed all particulars including a photostat copy of the statutory notification exempting the particular sale transaction. The second respondent by his letter dated 14th March, 1980 called for certain clarifications. The petitioner sent a reply on 27th march, 1980 fully furnishing the particulars called for. The petitioner also periodically reminded the second respondent in the matter. The second respondent ultimately by a communication dated 22nd March, 1982, informed the petitioner that they should file a regular revision petition before the Deputy commissioner of Commercial Taxes, Madras (North) Division, the first respondent, under section 32 of the Act. Accordingly the petitioner presented a revision petition on 16th April, 1982 addressed to the first respondent. The said revision petition was returned by the first respondent abovenamed on the ground that it is barred by limitation as according to him the time for revision expired on 27th February, 1982. We find that there is an error apparent on the face of the record of the assessment pertaining to the assessment year 1974-75, which calls for a rectification. Section 55 of the Act empowers the second respondent to rectify any error apparent on the face of the assessment order within a period of five years from the date of the assessment order. Hence the letter written as early as in March, 1980 by the petitioner is well within the statutory period of five years prescribed from the date of assessment. So the second respondent is duty bound to exercise his authority under section 55 of the Act and ought to have rectified the order of assessment by granting exemption from liability to sales tax on the proceeds realised by the sale of the Standard-20 ambulance van to M/s. Union Co. (Motors) Private ltd. , Madras, in turn sold to the Agarwal Relief Trust, for use in the Agarwal hospital. Since the second respondent kept the matter pending on his file and ultimately returned it stating that the first respondent should be approached for the relief, the petitioner was obliged to file a revision petition under section 32 of the Act to the first respondent complaining that the second respondent ought to have granted the relief. So this Court hold that the order of the second respondent declining to exercise the powers conferred on him under section 55 of the Act and referring the petitioner to invoke section 32 of the Act and approach the first respondent is ex facie wrong and illegal and is liable to be quashed and is hereby quashed. The writ petition is allowed. Under the circumstances, there is no order as to costs. Writ petition allowed.