JUDGMENT
Dharma Rao Elipe, J.
1. The above writ appeal was filed by the writ petitioner against the order of the learned single Judge dated 3.11.2006 in W.P.(MD) No. 7970 of 2006, wherein the learned single Judge dismissed the writ petition on the ground that no explanation was offered for the delay in filing the writ petition and the petitioner has not made out a prima facie case on merits and that the petitioner instead of filing petition under Section 55 of the Tamil Nadu General Sales Tax Act, 1959, stated to have made representations and the receipt of the said representations was disputed by the Department.
2. The writ petitioner is the manufacturer of Cotton Yard and an assessee under the Tamil Nadu General Sales Tax Act. The petitioner submitted his accounts to the second respondent for final assessment purpose and based on the revised statements filed by the petitioner for the assessment year 1996-97, his accounts was checked by the second respondent and the second respondent issued a Pre-revised Assessment Notice under C.S.T. Act in No. 489531/96-97 dated 31.1.2000 proposing the turnover as detailed below:
Taxable Turnover
i) Interstate sale of
cotton year Rs. 38,63,001.00
ii) Interstate sale of
Waste Materials Rs. 1,49,736.00
Rs. 40,12,737.00
Exempted
iii)Sales through Agents
in other State Rs. 1,73,90,547.00
iv) Director Export sales Rs. 9,35,73,340.00
v) Sales to Exporter
under Section 5(3) Rs. 9,29,29,460.00
Gross Turnover Rs. 20,38,93,347.00
It is stated in the affidavit that the defects in the Pre-Assessment Notice dated 31.1.2000 was pointed out and thereafter the second respondent fixed the taxable turn over and passed the final assessment order on 29.2.2000. Now it is contended by the learned Counsel for the petitioner that the second respondent had taken the value of goods actually transferred by the petitioner to the Agents of other States during the year 1996-97 instead of taking the actual sales made by the Agents furnished in Form “F” of the other State which is available in the sale pattials and Form “F”.
3. It is further stated that after the final notice, the petitioner made a representation on 23.6.2000 stating that the actual sales made by the Agent of other State was only Rs. 1,68,47,409/- and that the Assessing Officer had taken the actual value of Cotton Yarn which were the stocks transferred during 1996-97. But the second respondent had not considered the said representation and not passed any order. The petitioner also preferred number of representations in that regard.
4. It is contended by the learned Counsel for the petitioner that as per Section 55 of the Act read with the Circular issued by the first respondent dated 18.12.2002, it has been clarified as follows:
With reference to the letter cited the petition are clarified that Form “H” can be filed even after final assessment and revision under Section 55 made by the Assessing Officer.
The learned Counsel also relied on the Judgment of this Court reported in 2005(3) CTC 81, wherein it has been held as follows:
that the Commercial Tax Officer has not decided the appellant’s application under Section 55 but has only said that the appellant may avail of his statutory remedy of appeal under Section 31 of the Act.
In our opinion, the Commercial Tax Officer should have decided the application under Section 55 on its merits, which he has not done.
12. In view of the above we dispose off the writ petition with a direction that the Commercial tax Officer should decide the application of the appellant filed under the Act on merits expeditiously.
5. It is further contended by the learned Counsel for the petitioner that as per Section 55 of the TNGST Act, power is conferred on the authority to rectify any error apparent on the face of the record. Therefore, when representations were made on 23.6.2000, 21.12.201, 27.9.2003, 29.11.2004 and 1.6.2005, it is the duty of the second respondent to consider and pass orders on the representations. On the other hand, the Department disputed the receipt of the representations preferred by the petitioner on the basis of the provisions under Section 55 of the Act.
6. We have gone through the representations filed by the petitioner wherein he had clearly admitted the fact that he is yet to file Form ‘H’ for consideration and when a notice was received on 31.1.2000, according to the petitioner he also gave a reply. But, nothing was produced before the Court.
7. Considering the facts and circumstances of the case, it is relevant to extract Section 55 of the Act, which reads as follows:
Section 55. Power to rectify any error apparent on the face of the record:
(1) An assessing authority or an appellate or revising authority (including the Appellate Tribunal) may, at any time within five years from the date of any order passed by it, rectify any error apparent on the face of the record:
Provided that no such rectification which has the effect of enhancing an assessment or any penalty shall be made unless such authority has given notice to the dealer and has allowed him a reasonable opportunity of being heard.
Section 55(2) Where such rectification has the effect of reducing an assessment or penalty, the assessing authority shall make any refund which may be due to the dealer.
Section 55(3) Where any such rectification has the effect of enhancing an assessment or penalty, the assessing authority shall give the dealer a revised notice of assessment or penalty and thereupon the provision of this Act and the rules made thereunder shall apply as if such notice had been given in the first instance.
Section 55(3-A) The powers under Sub-section (1) may be exercised by the assessing authorities even though the original order of assessment, if any, passed in the matter has been the subject matter of an appeal or revision.
Section 55(4) The provisions of this Act relating to appeal and revision shall apply to an order or rectification made under this section as they apply to the order in respect of which such order of rectification has been made.
8. It is seen that in the case on hand, the concerned authority has not exercised suo-motu power to rectify any error on the face of the record. on the other hand, it is disputed by the Department about the receipt of any representation filed by the petitioner and the embargo is that if the error is found apparent on the face of the record, it has to be rectified within five years from the date of any order passed by the above said authorities. As seen from the record, the final assessment order was passed on 29.2.2000 and the period of five years expired in the month of February 2005. Admittedly the petitioner submitted the representations only after the five years period. Therefore, neither the Officer nor the Court has got the jurisdiction to condone the delay of filing any petition and to rectify the order after the expiry of five years from the date of passing of the final assessment order.
9. In view of the restrictions imposed under Section 55 of the Act of five years period to rectify the mistakes apparent on the face of the record and the fact that the writ petition was filed after the expiry of five years from the date of final assessment order, the case of the petitioner cannot be considered. Therefore, the delay cannot be condoned.
10. Therefore, the writ appeal is dismissed and the order passed by the learned Single Judge in W.P.(MD)No. 7970 of 2006 dated 03.11.2006 is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.