JUDGMENT Chitra Venkataraman, J. 1. The assessee is on revision as against the order of the Sales Tax Appellate Tribunal relating to the assessment year 1985-86 and 1986-87 raising the following questions of law :- T.C.(R).No.28/2011:- "1. Whether the findings of the Sales Tax Tribunal to the effect that there has been excess collection of sales tax supported by the materials on record especially in the light of the findings of another quasi judicial authority that there has been no unauthorized collection. 2. Whether the Sales Tax Tribunal, being the final fact finding authority, was justified in allowing the appeals filed by the State without assigning reasons as to how the first appellate authority went wrong in holding that collection of deposits by the manufacturer did not amount to unauthorized collection of sales tax. 3. Whether the Sales Tax Tribunal ought to have dismissed the appeal holding that the department had not produced any materials to prove that the findings of the Appellate Assistant Commissioner that there was no excess collection was wrong, other than mere assertions in the grounds of appeal. 4. Whether the Sales Tax Tribunal ought to have held that the principles stated by the Supreme Court regarding the question of unjust enrichment cannot be applied blindly ignoring Section 22 of the TNGST Act as it then stood and the facts of case in the absence of proof on the part of the department to prove excess collection. 5. Whether the Sales Tax Tribunal ought to have held that the proceedings levying penalty are barred by the period of limitation of 5 years fixed under Section 22, as it then stood, and hence the levy of penalty is without jurisdiction and unjustified on facts and law." T.C.(R).No.392/2011:- "(i) Whether the Sales Tax Tribunal, being the final fact finding authority, was justified in allowing the appeals filed by the State without assigning reasons as to how the first appellate authority went wrong in holding that collection of deposits by the manufacturer did not amount to unauthorized collection of sales tax ? (ii) Whether the Sales Tax Tribunal ought to have held that the proceedings levying penalty are barred by the period of limitation of 5 years fixed under Section 22, as it then stood, and hence the levy of penalty is without jurisdiction and unjustified on facts and law ?" 2. (ii) Whether the Sales Tax Tribunal ought to have held that the proceedings levying penalty are barred by the period of limitation of 5 years fixed under Section 22, as it then stood, and hence the levy of penalty is without jurisdiction and unjustified on facts and law ?" 2. The assessee herein is a dealer in Air-conditioners, Refrigerators and Stabilizers etc., In respect of the turnover relating to works contract, the assessee is stated to have collected certain sums towards sales tax deposits. While granting exemption in works contract, the Assessing Authority viewed that the dealer had collected the deposit towards sales tax illegally and the same was liable to be forfeited. By order dated 30.11.1998 for the assessment years 1985-86 and 1986-87, the Assessing Authority proposed levy of penalty under Section 22(2) of the Tamil Nadu General Sales Tax Act. As per this provision, as it stood then, levy of penalty to be validly levied has to be within a period of five years from the expiry of year into which the amount has been collected to. The assessee submitted that there was no provision for forfeiture of amount collected as contingency deposit. In the circumstances, they prayed for dropping of the penalty levied. 3. The claim of the assessee was however rejected and ultimately, penalty was levied. Aggrieved by this, the assessee went on appeal before the First Appellate Authority. The First Appellate Authority followed the decision in the case of Dalmia Cement Bharat Ltd., Vs. DCTO., Lalgudi reported in 73 STC 167 and set aside the levy of penalty. Aggrieved by this, the Revenue filed appeal before the Sales Tax Appellate Tribunal, which however, set aside the order of the Appellate Assistant Commissioner, without assigning any reason, thus, the present Tax Case Revisions by the assessee. 4. Learned counsel appearing for the assessee placed heavy reliance on the provisions of Section 22(2) of the Act, as it existed then and submitted that the admitted fact is that penalty was levied under Order dated 30.11.1998 in respect of the assessment years 1985-86 and 1986-87. 4. Learned counsel appearing for the assessee placed heavy reliance on the provisions of Section 22(2) of the Act, as it existed then and submitted that the admitted fact is that penalty was levied under Order dated 30.11.1998 in respect of the assessment years 1985-86 and 1986-87. Considering the proviso that the jurisdiction to levy penalty is given as five years from the expiry of the year in which the amount had been collected to, the entire proceedings of the Appellate Authority was beyond jurisdiction and hence, liable to be set aside; consequently, the orders of the Sales Tax Appellate Tribunal is totally against the provision and liable to be set aside. He pointed out that leaving aside the merits of penalty levied, when the jurisdiction itself is not there on the expiry of the five year period from the expiry of the year in which the amount had been collected, the Sales Tax Appellate Tribunal having not considered the issue on the question of law, the Tax Case Revision has to be allowed. 5. We agree with the submissions made by learned counsel for the assessee. Section 22(2) of the Act prior to its amendment 2004 reads as under:- "If any person or registered dealer collects any amount by way of tax or purporting to be by way of tax in contravention of the provisions of sub-section (1), whether or not any tax is due from such person or dealer under this Act in respect of the transaction in which he collects such amount, the assessing authority may, after giving such person or dealer a reasonable opportunity of being heard, by order in writing impose upon him by way of penalty a sum not exceeding one and a half times such amount. Provided that no proceedings under this sub-section shall be commenced after a period of five years from the expiry of the year in which the amount has been collected." 6. It is not disputed by the Revenue that the amount in question collected as contingency deposit treated as illegal collection related to the relevant assessment years herein 1985-86 and 1986-87. Taking 31st March 1986 and 31st March 1987 as the relevant date for working out the limitation, the five year period expired on 1991 and 1992. The assessment orders in these cases were passed on 30.11.1998 after giving notice to the assessee. Taking 31st March 1986 and 31st March 1987 as the relevant date for working out the limitation, the five year period expired on 1991 and 1992. The assessment orders in these cases were passed on 30.11.1998 after giving notice to the assessee. Having regard to the patent illegality on account of absence of jurisdiction as per the proviso as it stood during the relevant assessment year, we set aside the order of the Sales Tax Appellate Tribunal. The Tax Case Revisions stand allowed. No costs.