ORDER
K. Raviraja Pandian, J.
1. The writ petition is filed for the issuance of a writ of certiorarified mandamus to call for the records of the first respondent in Asst. No. 2661801/02-03, set aside the impugned proceedings dated September 26, 2003 and further direct the respondent to follow the provisions of the Tamil Nadu General Sales Tax Act, 1959 as prescribed under Section 7F read with Rule 18F of the Tamil Nadu General Sales Tax Rules, 1959 and thereafter take action in accordance with law.
2. Mr. Haja Nazirudeen, learned Special Government Pleader (Taxes), takes notice for the respondents.
3. The petitioner put in issue the notice dated September 26, 2003 issued by the first respondent, Commercial Tax Officer, Salem Town (North), requesting the assessee to pay tax, surcharge and resale tax of Rs. 4,85,928 within three days of the receipt of the notice along with interest under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959.
4. It is the case of the petitioner that in respect of assessment year 1999-2000, the petitioner paid taxes over and above what was due from him. As a matter of fact, the first respondent himself has issued form 'C' by his order dated March 28, 2002 whereby he has stated that an excess amount of Rs. 5,73,833, paid by the petitioner for the assessment year 1999-2000, is available with the Department and the said amount is refundable and the same would be adjusted for the future payment from the petitioner. Thereafter, for the assessment year 2002-2003, the petitioner adjusted the said amount and filed its return for the month of December 2002 and January 2003. While that being so, the impugned notice has been issued as if the petitioner has not paid the amount in due time and directed to pay the amount with interest under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959.
5. I have heard the learned Counsel for the petitioner and perused the materials available on record. It is evident from form 'C' prescribed intimation of the final assessment and refund order under Rules 16, 18, 18A, 32(2), 34(1)(d) of the Tamil Nadu General Sales Tax Rules, 1959 which is made available at page No. 23 of the typed set of papers, that it is the stand of the respondents that a sum of Rs. 5,73,833 of the petitioner's amount is available with the Department, which is the excess payment for the assessment year 1999-2000.
6. Rule 18(7) of the Tamil Nadu General Sales Tax Rules, 1959 provides as follows:
18(7). After making the final assessment under Sub-rule (6) or revision of assessment under Rule 18A, the assessing authority shall examine whether any and, if so, what amount is due from the dealer towards it after deducting any tax paid in advance with reference to Sub-rule (3) or Sub-rule (4). If any amount is found to be due from the dealer towards final assessment or revision of assessment, the assessing authority shall serve upon the dealer a notice in form B3 and/or form B9 and the dealer shall pay the sum demanded at the time and in the manner specified in the notice. If the tax due on the final assessment or revision of assessment is lower than the tax already paid and if there are any arrears of tax due under the Act from the dealer, the officer shall serve upon the dealer a notice in form C, notifying the dealer of the adjustment of excess tax towards such arrears. 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 serve upon the dealer a notice in form C for refunding 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 from the treasury. If the tax due on the final assessment or revision of assessment is exactly equal to the tax paid in advance the assessing authority shall inform the dealer what the final assessment or revision of assessment is and that no further amount is due from him towards it.
7. Hence, the petitioner is entitled for adjustment of the excess amount paid by him. Otherwise, the Revenue has to pay interest at the rate of nine per cent over the excess amount retained by the Department. When such statutory provision is there in favour of the petitioner for adjustment and it has also been accepted by the first respondent, Commercial Tax Officer, Salem (North), the excess amount will be adjusted for future assessment and the impugned notice cannot be legally sustainable. It is not as if the petitioner has not paid the amount in due time and as such there is no reason to levy interest for belated payment.
8. For the abovesaid reasons, the first respondent, Commercial Tax Officer, Salem (North), is hereby directed to calculate the returns filed for December 2002 and January 2003 by the dealer with reference to the excess payment accepted by the first respondent in his proceedings above referred to dated March 26, 2002 and thereupon proceed further if there is any amount due from the petitioner to recover the same in accordance with law.
9. With the above direction, the writ petition is disposed of.