L.Palamalai, Administrative Member - (1.) THE common prayer in both the original petitions is to quash the order of the Sales Tax Appellate Tribunal (Additional Bench), Chennai in S.T.P. Nos. 4 and 5 of 2001 in S.T.A. Nos. 156 and 157 of 2001 dated March 27, 2001 and to direct the respondent No. 2 to honour the refund order issued in his proceedings dated November 20, 2000.
(2.) MR . K. Ramaswamy, the learned counsel for the petitioners, contended that the assessing authority in pursuance of the orders of the appellate authority issued refund orders for the assessment years 1996 -97 and 1997 -98. The assessing authority did not take action to refund the excess tax paid in terms of the orders of the Appellate Assistant Commissioner though an application was filed under Section 39 -A(1) of the Tamil Nadu General Sales Tax Act, 1959 read with Rule 32(2) of the Tamil Nadu General Sales Tax Rules, 1959. Subsequently, on the basis of an application filed under Section 24(4) of the Tamil Nadu General Sales Tax Act, 1959 read with Rule 23 -A(1) in form No. XXXIII claiming interest at 12 per cent per annum on the excess tax paid an order to give effect to the Appellate Assistant Commissioner's order was issued and a refund voucher bearing No. 275152 dated January 22, 2001 was also issued. However, when the refund voucher was presented for encashment in the treasury, it was stopped payment by the second respondent in the communication sent by him on March 1, 2001. As a result, the bill for refund was returned and thereafter the petitioner received a communication from the Sales Tax Appellate Tribunal (Additional Bench), Chennai stating that a stay petition No. 4 of 2000 in S.T.A. No. 156 of 2001 was filed in respect of the amounts refunded in pursuance of the orders of the Appellate Assistant Commissioner. Though a counter -petition was filed challenging the maintainability of the said application filed under Section 39 -A(2) of the Tamil Nadu General Sales Tax Act, 1959 the Appellate Tribunal passed the impugned order staying the refund of the amounts ordered for the assessment years 1996 -97 and 1997 -98 by the Appellate Assistant Commissioner. On merits, the order of the Appellate Assistant Commissioner is based on the decision of the Supreme Court in the case of 20th Century Finance Corpn. Ltd. v. State of Maharashtra reported in [2000] 119 STC 182. In any event, after the issue of refund voucher in pursuance of the refund order passed by the assessing authority, the Appellate Tribunal lacks jurisdiction to stay the operation of the refund order passed by the assessing authority. In fact, the refund was obtained only by filing an application under Section 39 -A(1) of the Tamil Nadu General Sales Tax Act, 1959 read with Rule 32(2) of the Tamil Nadu General Sales Tax Rules, 1959. In such circumstances, the Tribunal lacks jurisdiction to stay the order under the very same provisions of law. Even the larger power of the Appellate Tribunal as contemplated in Section 36(5) of the Tamil Nadu General Sales Tax Act, 1959 has been taken away by Act 11 of 1997. In the absence of any inherent power as considered by this Special Tribunal in the case of Goodluck Agencies reported in [1999] 113 STC 122, the order passed by the Appellate Tribunal without applying the guidelines declared by this Special Tribunal in the case of Goodluck Agencies [1999] 113 STC 122 is totally against the principles of natural justice. In any event, the Appellate Tribunal did not have any jurisdiction to stay the operation of the refund after issue of refund voucher. In such circumstances, the order passed by the Appellate Tribunal without any jurisdiction shall be quashed by this Special Tribunal. We have considered the contentions carefully and perused the records. Relevant Rule 32 which contemplates refund of amount consequent on appeal or revision order reads as follows : "Rule 32(1) : Every order of an appellate or revising authority under Section 31, 31 -A, 33 or 35 as the case may be, shall be communicated to the appellant or petitioner, to every other party affected by the order, to the assessing authority against whose order the appeal was filed and also to any other authority concerned. (2) The order passed on appeal or revision shall be given effect to by the assessing authority who shall refund without interest within three months from the date of the communication of the order, any excess tax found to have been collected and for this purpose shall serve upon the dealer a notice in form C notifying the dealer of the adjustment of excess tax towards arrears, if any, or if there are no arrears of tax due under the Act from the dealer or if after such adjustment there is still an excess, the officer shall refund the amount of the excess tax and along with such notice, he shall also send to the dealer a voucher for claiming refund of that amount without interest from the treasury. If any amount is found to be due from the dealer, the assessing authority shall serve upon the dealer a notice in form B -7 and the dealer shall pay the sum demanded in the manner specified in the notice."
(3.) SECTION 24(4) of the Tamil Nadu General Sales Tax Act, 1959 which contemplates payment of interest if the amount is not refunded in pursuance of the order of the appellate or revisional authority within a period of 90 days from the date of receipt of the order of the appellate/revisional authority reads as follows : "Section 24(4). Where the tax paid under this Act is found to be in excess on final assessment or revision of assessment, or as a result of an order passed in appeal, revision or review, the excess amount shall be refunded to the dealer after adjustment of arrears of tax, if any, due from him. Where the excess amount is not refunded to the dealer within a period of ninety days from the date of the order of assessment or revision of assessment and in the case of order passed in appeal, revision or review within a period of ninety days from the date of receipt of the order, the Government shall pay by way of interest, where the amount refundable is not less than one hundred rupees, a sum equal to a sum calculated at the rate of one per cent or part thereof of such amount for each month or part thereof after the expiry of the said period of ninety days. Explanation. - -For the purpose of this section, the expression 'order passed in appeal, revision or review', shall not include order passed in such appeal, revision or review with direction to make fresh assessment order.";