JUDGMENT : Akil Kureshi, J. The petitioner has challenged an order dated 23.04.2018 as at Annexure-8 to the petition. He has prayed for the grant of refund of a sum of Rs.24,21,007/- which was deducted from the petitioner's bills in course of execution of a work contract for the assessment period 2010-11 to 2013-14. These prayers arise in following background: 2. Petitioner is a private limited company and is dealing in laying down and installation of pipes in the field of Gas, Electric and Telecom sectors with Trenchless technology called Horizontal Directional Drilling (HDD, for short). The petitioner was awarded a work order for laying/ installation of pipes through HDD technology in the city of Agartala by one Kazstrov Services Infrastructure India Private Limited (KSS, in short) on 21.12.2010. For execution of the said work the petitioner obtained a registration under the then in force Tripura Value Added Tax Act (TVAT Act, for short) in January, 2021. In the course of the execution of the work order the petitioner as a service provider paid service tax to the Central Excise and Service Tax Department, Government of India by depositing or adjusting service tax. 3. In the course of payment of the bills to the petitioner-company KSS had deducted tax of Rs.24,21,007/- during the year 2011-12. It appears that the said action was taken by KSS under the direction of the Superintendent of Taxes. The petitioner, therefore, wrote to the Superintendent of Taxes, Charge-V on 18.08.2011 and explained the detailed mode of execution of the work in order to point out that the petitioner is a service provider and is exigible to service tax. However, in absence of any transfer of material or machinery during the course of execution of the work, no sale takes place as per the provisions of TVAT Act. It was pointed out that there is no transfer of property in goods and, therefore, in this transaction the petitioner has no VAT liability. 4. On 01.09.2011 the Superintendent of Taxes, respondent No.4 herein, wrote to the petitioner stating that in pursuance to the work order in question the petitioner had imported taxable materials and this transaction, therefore, falls within Section 4 of TVAT Act and the purchase of material would invite VAT as per specified rate. 4. On 01.09.2011 the Superintendent of Taxes, respondent No.4 herein, wrote to the petitioner stating that in pursuance to the work order in question the petitioner had imported taxable materials and this transaction, therefore, falls within Section 4 of TVAT Act and the purchase of material would invite VAT as per specified rate. It was, therefore, necessary that KSS deducts 4% of the gross amount of bill at the time of payments on provisional basis. 5. According to the petitioner, the case was covered under the service tax regime and no value added tax was to be paid. Despite this, in response to the notice issued by the respondent No.4 the petitioner also filed the returns under TVAT Act for the assessment period 2010-11 to 2013-14 on 19.09.2014. The company prayed for the refund of amount of Rs.24,21,007/- collected for the period during 2011-12. Since the petitioner did not receive any response to its returns filed and the request for refund of the tax collected in excess, the petitioner wrote to the respondent No.4 on 27.05.2015 and reminded that despite submission of all documents the assessment for the period 2010-11 to 2013-14 is pending and that the Superintendent may fix a date of hearing at the earliest. There was no response to this notice by the respondent No.4. The petitioner, therefore, wrote to the Superintendent on 19.04.2018 and reiterated the request for completion of assessment and refund of amount of Rs.24,21,007/- collected. 6. In response to the said letter, the Superintendent wrote to the petitioner on 23.04.2018 as under : “Sir, With reference to your letter No. Nil, dated 19.04.2018 I would like to inform you that due to provisional Bar under section 33 of the TVAT Act, 2004 it is not possible at this moment to take up the assessment case for the period from 2010-11 to 2012-13. However, in respect of assessment case for the period 2013-14 it is to be mentioned h ere that there is no time bar limit up to the period 31.03.2019. So, the assessment case for the period may be taken up under section 31 of the TVAT Act, 2004. This is for your information.” 7. As per this communication of the Superintendent thus assessment for the period between 2010-11 to 2012-13 had become time barred. So, the assessment case for the period may be taken up under section 31 of the TVAT Act, 2004. This is for your information.” 7. As per this communication of the Superintendent thus assessment for the period between 2010-11 to 2012-13 had become time barred. However, for the assessment period of 2013-14 time limit was up to 31.03.2019 which had not till then expired. 8. The petitioner thereupon approached the revisional authority under the TVAT Act and sought refund of the tax collected in excess. The revisional authority, i.e. Commissioner of Taxes passed an order on 18.12.2018 in which he came to the conclusion that he cannot take cognizance against the communication sent by the Superintendent of Taxes. The revision petition was dismissed. 9. The petitioner thereafter filed further revision petition before the High Court being CRP No.43 of 2019 and challenged the order passed by the revisional authority on 18.12.2018. This petition was disposed of by an order dated 24.11.2020 observing that the revisional authority was not wrong in holding that the communication issued by the Superintendent was not open to revision. However, it would be open for the petitioner to institute appropriate proceedings as may be advised. Thereupon the present petition has been filed. 10. The case of the petitioner is brief namely that under the insistence of the Superintendent of Taxes from the bills of the petitioner KSS was compelled to deduct provisional tax. According to the petitioner the transaction was not exigible to tax under the TVAT Act since there was no sale of the goods in course of execution of the work contract. The Superintendent of Taxes ought to have adjudicated on this issue by passing an order of assessment. He cannot retain the provisionally collected tax on the ground that such assessment has now become time barred. 11. On the other hand, the case of the respondents is that the petitioner had appeared before the Superintendent in response to a notice dated 12.02.2014 but had prayed for adjournment. The case of the respondents as emerging from the affidavit-in-reply is as under : “That, with regard to the statements made in paragraph No.14 and 15 of the Writ Petition, I say that, the Works Contract tax deducted by M/S KSS for the bill of the petitioner was provisional. The case of the respondents as emerging from the affidavit-in-reply is as under : “That, with regard to the statements made in paragraph No.14 and 15 of the Writ Petition, I say that, the Works Contract tax deducted by M/S KSS for the bill of the petitioner was provisional. Without making any assessment of the dealer/petitioner the actual amount of tax cannot be ascertained and the claim raised by the petitioner cannot be proved conclusively. It is further submitted that the dealer is selected for assessment on random basis and after completion of assessment the actual tax liability of the dealer is determined and after assessment if it is found that the dealer is entitled to net the refund the same is done. xxx xxx xxx It is pertinent to mention here that the contention raised by the Petitioner that the assessment was kept pending is not true. The selection of dealer for assessment is done randomly and in the present case also the assessment could not be done within time as the petitioner was not selected for assessment. In the meantime due provisional bar under section 33 of the TVAT Act, the assessment could not be done. Thereafter the Petitioner filed one revision petition before the Revisional Authority with a plea to complete the assessment process for the period 2010-11 to 2013-14. But the Revisional Authority did not take up the matter as it was already time barred. xxx xxx xxx That, with regard to the statements made in para 24 of the Writ Petition, I say that, the Petitioner without appearing for scrutiny of documents including books of accounts, TDS certificate etc. to the Assessing Authority for reconciliation, had dropped his books of accounts in the central receipt section. Without physical hearing of the petitioner the assessment could not be conducted.” 12. The record would thus suggest that the petitioner from the beginning objected to any collection of tax from its payment for execution of the work in question. According to the petitioner there was no transfer of property in course of execution of work and, therefore, tax under TVAT Act was not exigible. According to the petitioner, it was liable to pay service tax which it had paid. According to the petitioner there was no transfer of property in course of execution of work and, therefore, tax under TVAT Act was not exigible. According to the petitioner, it was liable to pay service tax which it had paid. The Superintendent of Taxes, however, prima facie formed a belief that on the imports made by the petitioner for execution of the work value added tax had to be paid. In the present case, we are not concerned with the correctness or validity of the rival stands. What was of importance is that this issue had to be decided by a formal order to be passed by the Superintendent. Since the petitioner had objected to collection of tax from its running bills, the Superintendent had to take into account the petitioner's objection and pass a formal order either accepting or rejecting the objections which can be done only through assessment to be made in case of the petitioner for the period in question. If this assessment was adverse to the petitioner, he had a right of appeal. 13. The Superintendent did not undertake this exercise and allowed the assessments to get time barred. As is well-known, TVAT Act contains limitation provisions under which the assessments of returns filed by the dealers would become time barred. Section 31 of the TVAT Act pertains to Audit assessment. Section 32 pertains to assessment of dealer who fails to get himself registered. Section 33 provides that no assessment under section 31 and 32 shall be made after expiry of five years from the end of the tax period to which the assessment relates. Section 34 which pertains to turnover escaping assessment and permits assessment of such turnover, also contains a similar limitation clause in sub-section (2) which provides that no order of assessment shall be made under sub-section (1) after the expiry of five years from the end of the year in respect of which the tax is assessable. In the present case, the Superintendent himself conveyed to the petitioner under a letter dated 23.04.2018 that the assessment for the period 2010-11 to 2012-13 can no longer be made since the time limit for scrutiny assessment was over. In the present case, the Superintendent himself conveyed to the petitioner under a letter dated 23.04.2018 that the assessment for the period 2010-11 to 2012-13 can no longer be made since the time limit for scrutiny assessment was over. Whatever be the reason which prevented the Superintendent from completing the assessments within the statutory period permitted, once the assessment gets time barred it would no longer be possible for the Superintendent to withhold provisionally collected tax which was disputed by the petitioner at the very outset. As stated by the respondents in the affidavit-in-reply the petitioner in addition to furnishing documents did not appear for physical hearing before the Superintendent. This alleged non-cooperation of the petitioner also did not limit the power of the Superintendent to frame what is popularly referred to as a best judgment assessment. The Superintendent had to take into account whatever the documents the petitioner had placed on record and thereafter ought to have expressed his legal opinion on the disputed issue in form of an order of assessment. The Superintendent having failed to do so, having allowed the assessment to get time barred, now cannot withhold the provisionally collected tax, collection of which was resisted and payability of which was disputed by the petitioner. At the time of filing of the return in response to the notice issued by the Superintendent, the petitioner had claimed refund of the excess tax collected. To deny this refund to the petitioner, the Superintendent had to make an assessment for the period in question and appropriated the provisionally collected amount towards the petitioner's tax liability under the TVAT Act if the Superintendent was finally of the opinion that such tax was payable. Any such decision, as observed earlier, would be open to challenge in the form of appeals and revision. The Superintendent by not passing the assessment order, cannot terminate the petitioner's dispute of taxability of the transaction at his level without any opportunity to file appeal, that too without passing any order of assessment. In plain terms, the Superintendent has not expressed his own legal opinion of the vital question of taxability of the transaction in question. Any appropriation of tax in such a manner would be without authority of law. 14. In plain terms, the Superintendent has not expressed his own legal opinion of the vital question of taxability of the transaction in question. Any appropriation of tax in such a manner would be without authority of law. 14. Reference in this respect may be made to a decision of the Supreme Court in case of Commissioner of Income Tax vs. Shelly Products reported in 229 ITR 383 (SC) in which the question of refund of the tax deposited by the assessee by way of advance tax, self assessment tax or tax deducted at source when the assessment had become time barred came up for consideration. It was observed that the Income Tax Act provides for the manner in which advance tax is to be paid and deduction of tax at source is to be made, failure of both of which would result into penalties. It is therefore apparent that the act provides for payment of tax in such manner by the assessee and further enjoins upon the assessee the duty to file a return of income disclosing his true income. On the basis of the income so disclosed, the assessee is required to make a self assessment and to compute tax payable on such income and to pay the same in the manner provided by the act. Thus the filing of the return on payment of tax computed on the basis of the income disclosed amounts to an admission of tax liability by the assessee. Charging of such tax under section 4 of the Income Tax Act is thus not dependent on the assessment being made. However one cannot lose sight of the fact that the failure or inability of the revenue to frame an assessment should not place the assessee in a more disadvantages position then what it would have been an assessment had been made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self assessment tax which is in excess of his liability on the basis of the return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of assessment proceeding. Section 240 of the Act enjoins an obligation on the revenue to refund the amount to the assessee without his having to make any claim in that behalf. Section 240 of the Act enjoins an obligation on the revenue to refund the amount to the assessee without his having to make any claim in that behalf. In appropriate cases it is open for the assessee to bring facts to the notice of the concerned authority on the base of the return furnished which may have a bearing on the quantum of the refund. The concerned authority for the limited purpose of calculating the amount to be refunded under section 240 may take all such facts into consideration and calculate the amount to be refunded. So viewed, assessee will not be placed in a more disadvantages position then in what he would have been, had an assessment made in accordance with law. 15. In the case before us the assessee had not paid tax voluntarily. From the beginning the assessee had contested any collection of tax from its payments by KSS. The Superintendent of taxes however insisted that such deduction be made and the amount so deducted be deposited with the government revenue. The assessee had every right to dispute such collection and such dispute when raised in the return filed, had to be adjudicated by the Superintendent. The amount so collected cannot be retained without adjudication. Not framing the assessment till the return gets time barred cannot be the ground for retaining such tax. 16. The Superintendent not having framed assessment, must refund the amount in question to the petitioner with statutory interest. Accordingly, the respondent No.4 shall refund the said sum of Rs.24,21,007/- to the petitioner with interest as prescribed under the Act. This shall be done within four months from today. 17. Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.