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Babulal and Sons Vs. the Assistant Commissioner of Sales Tax, Nagpur - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 200 and 201 of 1970
Judge
Reported in1977MhLJ324; [1978]41STC89(Bom)
ActsBombay Sales Tax Act, 1959 - Sections 4, 11, 11(2), 15(1), 32, 33, 35, 35(1), 35(2), 35(3), 36(2), 36(3), 41, 55, 57, 57(1) and 62
AppellantBabulal and Sons
RespondentThe Assistant Commissioner of Sales Tax, Nagpur
Appellant AdvocateV.R. Manohar, Adv.
Respondent AdvocateV.P. Salve, Assistant Government Pleader
Excerpt:
sales tax - jurisdiction - sections 35 and 57 of bombay sales tax act, 1959 - power of assistant commissioner (ac) to make reassessment - ac empowered to correct original assessment in case any error apparent on face of assessment - such order can be made in exercise of power under section 57. - - 5. before we closely consider this narrow question we think it proper to allude to certain well-settled and legally correct statements and positions available as basic and underlying the enactment of the provisions like that of section 35 dealing with the process and modality of reassessment and section 57 dealing with the superimposed power of superintendence or of revision under the act concerned. the word 'assessment' with regard to original proceedings or the first phase in the original.....masodkar, j. 1. this petition questions the validity of the order made on 6th january, 1970, under section 57 of the bombay sales tax act, 1959, hereinafter called the act, by the assistant commissioner of sales tax, eastern division, ranges i and ii, nagpur. the period of assessment with which that order is concerned is of 1st january, 1964, to 31st december, 1964. 2. the petitioner is a dealer and licence-holder. he deals in foreign liquor. it appears that no return was filed though tax was paid for this period and, therefore, proceedings were initiated by issue of show cause notice on 9th february, 1967. return was required to be filed and for the purposes of this petition it is not necessary to go into the details of that proceedings. eventually an order was made on 28th november,.....
Judgment:

Masodkar, J.

1. This petition questions the validity of the order made on 6th January, 1970, under section 57 of the Bombay Sales Tax Act, 1959, hereinafter called the Act, by the Assistant Commissioner of Sales Tax, Eastern Division, Ranges I and II, Nagpur. The period of assessment with which that order is concerned is of 1st January, 1964, to 31st December, 1964.

2. The petitioner is a dealer and licence-holder. He deals in foreign liquor. It appears that no return was filed though tax was paid for this period and, therefore, proceedings were initiated by issue of show cause notice on 9th February, 1967. Return was required to be filed and for the purposes of this petition it is not necessary to go into the details of that proceedings. Eventually an order was made on 28th November, 1967, by the Sales Tax Officer against the petitioner. The total turnover found by the Income-tax Officer was Rs. 5,98,720.47. Deductions were allowed till 16th December, 1964, on the ground that general sales tax at 45 per cent. was leviable on the sales. Set-off was allowed under rule 40-B in the next period and the stock as on 1st January, 1965, was estimated at worth Rs. 23,858.46. Retail sales tax was worked out and after adjustment of set-off, the tax assessed was Rs. 85,439.67. Thus, the balance worked out by giving credits for the payments already made Rs. 24,817.94. For non-submission of return penalty in the sum of Rs. 7,000 was imposed under section 36(2)(c) of the Act.

3. After this order, the Assistant Commissioner of Sales Tax purported to issue on 8th November, 1968, a notice styled under section 35 of the Act. Reply was given by the petitioner-assessee questioning the validity of that notice on 17th March, 1969. The notice was withdrawn on 7th April, 1969. Prior to the withdrawal, on 4th April, 1969, the Assistant Commissioner of Sales Tax issued the notice under section 57 of the Act. Accompanied to that notice was the gist of the order proposed to be made. By that order it was proposed that the sales of Rs. 6,730.50 were wrongly taxed under entry No. 22 of Schedule E, while they were taxable under entry No. 70 of Schedule C. The petitioner-assessee objected by filing his reply on 22nd May, 1969. Further, purporting to act under the very same provision of section 57 of the Act, an additional notice was issued on 17th July, 1969, along with the proposed gist of the order in which it was stated that the Sales Tax Officer had wrongly allowed resales in excess by Rs. 17,542.93 than admissible as per law and further that set-off allowed was in excess than admissible and penalty under section 36(3) was not levied for the late payment of tax for the quarters ending 31st March, 1965, 30th June, 1965, 30th September, 1965, and 31st December, 1965. By his reply of 10th October, 1969, again the assessee objected. Eventually after giving hearing the Assistant Commissioner of Sales Tax made the impugned order on 6th January, 1970, assessing the petitioner to Rs. 76,599.05 as the tax payable and further levied the penalty under section 36(3) in the sum of Rs. 8,773.95, apart from the penalty already levied under section 36(2)(c) in the sum of Rs. 7,000. The net dues payable to the revenue after giving deductions for the tax paid were raised in the sum of Rs. 37,492.57. This order thus revised the order made by the Sales Tax Officer on 28th November, 1967, with regard to the period of 1st January, 1964, to 31st December, 1964. This revisional order, inter alia, applied Schedule C, entry No. 70, in place of Schedule E, entry No. 22, with regard to sales of foreign liquor imported into India. For the purpose of the present petition at the hearing, Mr. Manohar, the learned counsel appearing for the petitioner, did not dispute that the turnover of sales with regard to which entry No. 70 of Schedule C was applied did relate to the sales of duty-paid potable foreign liquor. The revising authority further dealt with the question of deductions permitted and the set-off granted and by applying the correct rules found that the set-off allowed by the Sales Tax Officer to the dealer on the basis of the stock on 17th April, 1964, was wrong and directed its deletion. Similarly, it directed as a consequential finding the deletion with regard to the turnover of Rs. 34,246 of the stock on 17th December, 1964. As admittedly, the payments were made late under the provisions of section 36(3), the penalty was leviable but the order had omitted to do so and, therefore, by the revisional order the penalty was imposed. Thus, the original order with regard to matters, firstly, fixing of the liability with reference to Schedule C, entry No. 70, secondly, with regard to question of deductions and, thirdly, the set-off and the Rules concerning the same as on 17th December, 1964, and, lastly, the liability to pay penalty under section 36(3) and application of law with regard that the learned counsel appearing for the petitioner has raised no dispute.

4. The main and sole contention of the petitioner as is raised before as eventually in this petition rests upon the objection which was also raised before the revisional authority, and relates to the ambit, scope and power conferred by section 57 of the Act in the matters of tax revision. It is submitted that the power itself is of limited authority and in its exercise it cannot conceivably take in the process and the power conferred by other provisions of the statute upon the authorities in the matter of tax. Thus the plea upon the limitation of the power is raised and it is submitted that the order is made entirely without jurisdiction or at any rate is in excess thereof upon true contemplation and construction of section 57. It is submitted that once the assessment order is made, then on the grounds of which the revising authority has made the present order the only provision available under the present taxing statute was the provision of section 35 and no other. Reliance is placed on the text of section 35 and the concepts and terminology available therein for making a submission that the total ground or grounds on which the revisional power is exercised excepting the one with regard to levy of penalty falls squarely within the contemplation of sub-section (2) of section 35, in that this would be a case where the turnover of sales has been either under-assessed or assessed at a lower rate or a deduction has been wrongly permitted or a set-off has been wrongly granted. If these contingencies are available in the matter of assessment, the only course, according to the learned submission, is that proceedings for the purpose of reassessment as contemplated by section 35 and not invoking the suo motu power of revision are available to the authorities. As, in the present case, the notice under section 35 was initially issued and dropped, it is submitted that the jurisdiction exercised is only under section 57 and the said power not being available, for, this being a case of reassessment and not correcting the assessment, the impugned order must be set aside. Reliance is placed on the decision of the Supreme Court reported in the case of Swastik Oil Mills Ltd. v. H. B. Munshi : [1968]2SCR492 , wherein the earlier decision of the Supreme Court reported in State of Kerala v. K. M. Cheria Abdulla & Co. : [1965]1SCR601 , is considered and applied to submit that there are inherent limitations on the revisional power and one of them is express jurisdiction created in favour of some other authority under the provisions of the said Act. To put it differently the submission is that in the process of revision, reassessment contemplated by section 35 has been done on the stated grounds which was incompetent under the law.

5. Before we closely consider this narrow question we think it proper to allude to certain well-settled and legally correct statements and positions available as basic and underlying the enactment of the provisions like that of section 35 dealing with the process and modality of reassessment and section 57 dealing with the superimposed power of superintendence or of revision under the Act concerned.

6. Here we are in the domain of public law that concerns with the matters of taxation on sales of goods. As is implicit in the scheme of such Acts, provisions are enacted for the determination of the liability to pay the given tax. Such enactments follow the twofold statutory system that can be classed as enacting statutory provisions giving rise to the charging of the tax and, secondly, enacting provisions that may be termed as formal or procedural as distinct from substantive and that concern itself with the mode and manner of assessment, enforcement, procedure coercive measures, administrative and judicial adjudications and other ancillary matters in that regard. No doubt the primary principle is the taxing statute both in its substantive and formal aspects shall have to be complied with before a citizen can be asked to pay and it will be legitimate for a citizen to set up its breach in both of these departments as a valid defence which may eventually affect the liability or the demand emanating under the process of that law.

7. Further, it is rudimentary in modern legislations of tax to lay down a three-phased provision interconnected with each other in the matters of determination of the liability to pay tax and eventual enforcement of demands. Assessment or the phase that involves adjudication and determination or the definition of the amount of tax under a particular statute as is understood in the tax dictionary involves the process of finding or analysing the tax situation and the legal provisions that apply to that situation in the matter of levy, the incidence in the case of sale of goods being the sale of goods or the transactions of sale. The other phase in the determination is the computation or calculation or realising the said liability. It is evident that the matter of assessment which would lead to the application of law so as to determine the liability is enacted and indicated by conferring power to institute or initiate original proceedings. The word 'assessment' with regard to original proceedings or the first phase in the original proceedings thus indicates the stage of the finding in the context of the law like sales tax, the total turnover on the basis of which under the relevant provision the tax liability has to be calculated.

8. It is usual that in the dispensation of executive justice the taxing statutes not only keep the principles of natural justice alive but expressly make it applicable to the process of adjudication not only at the original stage but also provide remedies against the assessment so made by the original proceedings. These remedies usually take the form and shape of appeals or revision that operate on the initial field of assessment. Thus the total process of original assessment and that of appeal and revision provided is one and the composite process and for the purpose of the tax law can be treated as the first original phase of assessment as such. The jurisdiction and power of the authorities dealing with the matters of original assessment emanate and operate clearly for the purpose of tax adjudication over the sphere of this original and basic assessment. The constructions of hierarchy and power of appeal and revision over the original proceedings provided by the statute, it may be added at this stage, are the matters of creation of statutes and by very implication and express terms that involve the superior scrutiny by the higher authorities of matters brought before such authorities, either suo motu or upon an application, the distinctive feature being that the identity of jurisdiction to be exercised in appeal as well as in revision, subject, however, to the limits imposed upon that jurisdiction by the statute, is one and the same. There is undoubtedly difference between appellate and revisional jurisdiction and it is noteworthy that revisional jurisdiction is treated as supervisory and operative with inbuilt limitations in exercise of the same. These higher jurisdictions, either called appellate or revisional, thus enable the juridical examination by the higher authorities of the decisions of the inferior or the lower authorities : see Sk. Wahiduddin v. Makhanlal A.I.R. 1944 Lah. 458 , Mela Ram v. Income-tax Commissioner : [1956]29ITR607(SC) , Nagendra v. Suresh , J. P. Ojha v. R. R. Tandan : AIR1962All485 and a decision of this court in Asmita Dharaskar v. City of Nagpur Corporation 1976 Mh. L.J. 363.

9. We have made these observations to underpin the distinctive difference of jurisdiction exercised by the authorities under section 57 which cannot be confused with the jurisdiction that is created and can be exercised under section 35 of the Act. If the order can be sustained on the basis of the jurisdiction concerned expressly by the provisions of section 57 and if there be no bar for exercise of that jurisdiction otherwise available, the contention raised would stand repelled. Jurisdiction created by section 57 is one that of revision and it enables clearly the Commissioner to call for and examine the record of any order passed, including the one passed in appeal, by any officer or person subordinate to the Commissioner and to make an order subject to the proviso and subject to the conditions of sub-section (2) to (4) which the Commissioner may think just and proper. It is obvious that the Commissioner is authorised to call for and examine the record of any order made by the subordinate authority and further make such order which the Commissioner thinks just and proper. This being a power of revision, which is akin to the judicial scrutiny or superintendence by the higher authority over the subordinate judicial authority, operates clearly on the original proceeding itself. In other words, in the matter of assessment and the order made by the subordinate officer the proceedings of that assessment leading into that order can be examined and appropriate order with regard to that proceeding affecting the order of assessment for just and proper reasons can be made. In the context of tax law, the term 'just and proper' with regard to assessment would always include the matters of making assessment in accordance with the taxing statute. Application of the proper provisions of law to the turnover in issue or grant of proper exemptions, deductions or set-offs under the law in the assessment concerned cannot but be the matters which are covered by the phrase 'just and proper'. Presumably, matters 'just' include and involve all processual and procedural application of law and the matters 'proper' include adequate application of substantive provisions thereof. Commonly stated it all takes in mattes of legality, propriety and correctness of assessment. Assessing order once subjected to scrutiny in revision if on the face of it were without anything more disclosed an error of law, the power under section 57 can appropriately be invoked and exercised both against and for the revenue. Indeed what would be granted to the assessee upon an application can also be made in suo motu exercise of power. In substance the jurisdiction in revision is corrective one and, in that, it can reach to the errors of law or errors of procedure which are apparent on the face of the record. There is nothing contra-indicative in the terms of section 57 in this regard. In fact, the legislature has used the wide phrase permitting the Commissioner to make an order which 'he thinks just and proper'. The generality of that phrase, however, is controlled and limited because of the very concept of correction by supervisory exercise of powers as contemplated by section 57 as distinct and distinguished from the original power of wider scope available to an appellate authority conferred by the provisions of appeal like that of section 55 of the Act.

10. Thus far we have indicated that the nature, scope and purpose of section 57 is to subject the orders of the subordinate authorities to the superior scrutiny of the Commissioner in the matter of assessment originally initiated under the provisions of the Act and except for the inbuilt and conceptual limitations, no further limitations are conceived. If all the conditions are satisfied, in that, there is an order made by the officer or person subordinate to the Commissioner and there being no other impediment enacted by the statute, then, by reason of the jurisdiction created under section 57(1)(a), the Commissioner is empowered to call for and examine the record of such order and to make an order which he thinks just and proper. It is implicit herein that he can correct the errors apparent on the face of the record with regard to the assessment which, as we indicated above, would include the appropriate matters of application of law and the liability of tax accordingly to law.

11. The jurisdiction created under section 35, on the other hand, is not, nor can be confused as operating on the same field. It is a jurisdiction to reopen the assessment proper. Usually the jurisdiction is better expressly by the pithy term 'reassessment of turnover'. There is a distinction and distinction of substance between the concept of assessment and reassessment. It is not one and the same thing. Once the assessment is complete, that can be opened for the purpose of reassessment which is again an original proceeding only if the conditions of section 35 are satisfied and for no other reason. Assessment and the orders made therein can however be followed up by putting them in issue under the provisions providing for appeals like section 55 or subjecting them to superior scrutiny by the Commissioner under section 57 or if it be a case of mere mistake for rectification under section 32. The whole process however in the latter case has one identity and that is of assessment.

12. For the purpose however of reassessment, law enacts a specified procedure and creates distinct power or authority presumably in want of which assessment once made would become unalterable. The purpose underlying the provisions of section 35 thus is not to provide the scrutiny in appeal or scrutiny in revision of the assessment but to open the original proceedings for the reason and upon the stated grounds mentioned in sub-section (1) itself. The jurisdiction emanates from the basic fact where the Commissioner has reason to believe that any turnover of sales or turnover of purchases of any goods had escaped assessment or has been under-assessed or assessed at a lower rate or that any deduction has been wrongly made or any drawback, set-off or refund has been wrongly granted. These are enabling clauses for the exercise of the power with regard to reassessment permitted under section 35. Once these grounds or conditions are satisfied and the matter being within time as indicated by law, the power can be exercised to assessee or reassess to the best of the judgment the dealer or to the amount of the tax due. The proceedings taken under section 57 or section 62 cannot be subjected to the process of reassessment because of sub-section (2) of section 35 nor the provisions of section 57 or section 62 affect the provisions of section 35, because of sub-section (3) of section 35. These two sub-sections also indicate that the nature of the proceedings under sub-section (1) is more or less original and compartmentally conceived as the process of reassessment. Moreover, the opening clause of sub-section (1) of section 35 clearly indicates that the proceedings for reassessment can only be taken if the dealer has been assessed under section 33 or under section 4 or under section 41 and none other. If the case is of an assessment, it follows that sub-section (1) permits opening of the proceedings under section 33; so would be the case with regard to dealers covered by section 4 or matters covered by section 41 regarding exemptions. All this indicates that the nature of the proceedings under section 35 which are that of reassessment is distinct in jurisdiction and operates upon the specified field; it is a power conferred more or less upon the original assessing authorities.

13. Only because such power is created in favour of the original authority and granting that the assessing authority under section 35 could have initiated the proceedings for the purpose of reassessment on the ground that a person has been assessed at a lower rate or deduction has been wrongly made or a set-off has been wrongly granted, it does not follow that the revisional power under section 57, which operates on the assessment, as distinct from reassessment, in any manner, stands curtailed or otherwise is not available. To hold so would be to render the provisions distinctly made for the purpose of correcting the apparent errors as superfluous. After closely considering the provisions of section 35 and that of section 57 it is obvious that those operate on distinct and separate fields, one available for the purpose of reassessment and another operating upon the field of assessment as such.

14. The decisions on which reliance is placed do not, in our view, indicate anything contrary in the scheme of these two sections. It will suffice to make a reference to the decision of the Supreme Court in the case of Swastik Oil Mills Ltd. v. H. B. Munshi : [1968]2SCR492 , which in terms refers to the earlier decision in the case of State of Kerala v. K. M. Cheria Abdulla & Co. : [1965]1SCR601 . The ratio of Swastik Oil Mills Ltd. Co.'s case : [1968]2SCR492 , in our view, fortifies the conclusion to which we have reached rather than affect it. In that case, the challenge was to the notice issued by the revisional authority intimating the assesses-mills that it was proposed suo motu to revise the appellate order in so far as the deductions in respect of goods despatched to the branches of the assessee outside Maharashtra, which, in the view of the revising authority, was contrary to the provisions contained in proviso (b) to sub-section (ii) of rule 1 under section 6(3) of the Bombay Sales Tax Act, 1946, as amended by Bombay Act No. 48 of 1949. Once of the ground set up was, this notice was without jurisdiction. The objection was that the revisional authority could only proceed to take action on the basis of the material already present on the record and was not entitled to act on conjectures or to institute any enquiry so as to include additional material in order to judge the correctness of the order sought to be revised. Reliance was placed on the decision of the Andhra Pradesh High Court in the case of State of Andhra Pradesh v. T. G. Lakshmaiah Setty & Sons [1961] 12 S.T.C. 663, where the High Court had found that the revisional authority had no jurisdiction to travel beyond the record that was available to the assessing authority and the basis should be found on the record already in existence. With regard to this part of the matter, the Supreme Court observed :

'..... We are unable to accept this principle laid down by that High Court as correct. Whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it. When exercising such powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material. The proceedings for revision, if started suo motu, must not, of course, be based on a mere conjecture and there should be some ground for invoking the revisional powers. Once those powers are invoked, the actual interference must be based on sufficient grounds, and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding a further enquiry or directing such an enquiry to be held by some other appropriate authority. This principle has been clearly recognised by this court in State of Kerala v. K. M. Cheria Abdulla and Company : [1965]1SCR601 .....'

15. After laying down the width and scope of the revisional power in this manner which is a high authority for indicating that the power can be exercised for the purpose of examining the correctness, legality and propriety of the order subjected to revisional scrutiny and further in appropriate cases even further enquiry can be directed, the court went on to consider the matters of jurisdictional limitation on the exercise of this power. Again it referred to its earlier decision in K. M. Cheria Abdulla & Company's case : [1965]1SCR601 and quoted a passage therefrom after observing thus :

'While thus explaining the scope of the revisional power, the court also indicated the limitations within which such power can be exercised, holding :

'It would not invest the revising authority with power to launch upon enquiries at large so as either to trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore the limitations inherent in the exercise of those powers. For instance, the power to reassess escaped turnover is primarily vested by rule 17 in the assessing officer and is to be exercised subject to certain limitations, and the revising authority will not be competent to make an enquiry for reassessing a taxpayer. Similarly, the power to make a best judgment assessment is vested by section 9(2)(b) in the assessing authority and has to be exercised in the manner provided. It would not be open to the revising authority to assume that power.''

16. In the further part of the decision, the court observed thus :

'.... The case before us relates to exercise of revisional powers and does not deal with the question of the first assessment to be made when the return is initially filed by an assessee. In fact, when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this court in K. M. Cheria Abdulla & Co.'s case : [1965]1SCR601 . These limitations are that the revising authority should not trench upon the powers which are expressly reserved by the Acts or by the Rules to other authorities and should not ignore the limitations inherent in the exercise of those powers. In the present case, the Deputy Commissioner, when seeking to exercise his revisional powers, is clearly not encroaching upon the powers reserved to other authorities. Under the Act of 1946, the first assessment is made by the Sales Tax Officer under section 11. If information comes into his possession that any turnover in respect of sales or supplies of any goods chargeable to tax has escaped assessment in any year or has been under-assessed or assessed at a lower rate or any deduction have been wrongly made therefore, proceedings can be taken afresh under section 11A. On the face of it, if a first assessment order is made under section 11 and any turnover escapes assessment, the appropriate provision, under which action is to be taken for assessing that turnover to tax, is section 11A. There is, however, no provision under which the power now sought to be exercised by the Deputy Commissioner in the case before us could have been exercised by any other authority. In this case, as we have indicated earlier, the first assessment of tax was made by the Sales Tax Officer, and the turnover now in question was assessed to tax by him. Having once assessed that turnover to tax, he could not initiate a fresh proceeding in respect of it under section 11A. The assessment made by him was set aside in appeal by the Assistant Collector and it is this order of the Assistant Collector which is sought to be revised by the Deputy Commissioner. This is, therefore, not a case here the powers are being exercised for the purpose of assessing or reassessing an escaped turnover.'

17. With regard to the facts of that case and to uphold the notice, the court further observed :

'.... In the case before us, the turnover of the assessee now sought to be taxed in the revisional proceedings did not escape liability to tax under the orders of the Sales Tax Officer and, on the other hand, was actually taxed by him, which imposition of tax was set aside in appeal. Consequently, the Sales Tax Officer could not possibly take proceedings under section 11A in respect of that turnover.'

18. The ratio of this judgment, in our view, is clearly that there is a distinction between the revisional power and the power to reassess and the former should not entrench upon the later. If possibly the latter power cannot be exercised by the Sales Tax Officer, then there is no bar even to the exercise of the revisional power. In fact, under the facts of that case and the law applicable, the court upheld the jurisdiction to issue notice in exercise of the revisional powers in the matters of deductions.

19. If we are right on the ratio of this judgment, in that the power of revision is available for the purpose of scrutiny of the proceedings in assessment so as to find out its legality and propriety and it is distinct from the power of reassessment which is conferred upon the original authority like the Sales Tax Officer making the order of assessment, we do not see how the provisions of section 35 can at all be treated as involving a limitation upon the subject-matter of the power and jurisdiction conferred by the provisions of section 57. The very concept of reassessment to which we have made a little elaborate reference and assessment structurally, in our view, are independent and distinct and do not by any implication control the exercise of the authority expressly conferred by law. At least with regard to escaped assessment, by the very concept, it takes in the matters which did not fall for assessment or its considerations. The revisional jurisdiction operates upon the considerations of the legality, propriety and regularity of the assessment as such and not on the matters with regard to escaped assessment. This distinction has been applied in the case of State of Kerala v. K. E. Nainan : (1970)3SCC353 by the Supreme Court while considering the matters of similar jurisdiction under the provisions of the Kerala General Sales Tax Act and the Rules. There, for the assessment years 1955-56 and 1956-57, revisional powers were exercised under section 15(1) by the Deputy Commissioner cancelling the assessment and remanding the case for the fresh disposal and the argument was that the revisional power was exercised in respect of the turnover in which exemption was granted by the taxing authority and that it was a case where the turnover escaped assessment and covered by rule 33 framed under that Act. The High Court of Kerala upheld this objection and set aside the order of remand made by the revisional authority. The Supreme Court observed that the question which the Deputy Commissioner had to consider was one of the legality, propriety and regularity of the exemption of the turnover granted under the licence in respect of the auction sales and that fell strictly within the purview of section 15(1) of the Act and there was no question of any action being taken under rule 33 on the ground that there had been escapement of turnover. Further, following a decision in Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Dhanalakshmi Vilas Cashew Co. : (1970)3SCC273 , the court observed :

'It was held that section 15(1) was meant for interference when there was some illegality or impropriety or irregularity in the order of the assessing authority which had to be set aside. It could not cover those cases in which the turnover had escaped assessment.'

20. It was further indicated in the judgment that legality, propriety and regularity of the exemption of the turnover granted by the original order was amenable to the power that can be exercised in revision and was not a case of any escaped assessment.

21. We may also refer to the observations made though in different context by the Supreme Court with regard to the completion of assessment so as to reach the stage indicated or at least contemplated by the term 'escaped assessment'. In the case of M. V. Narsappa v. Commercial Tax Officer [1968] 22 S.T.C. 518 (S.C.), the argument was based by invoking rule 34(1) of the Mysore Sales Tax Rules, 1948, in the case where the return was filed by the dealer and the court had observed that until a final order of assessment is made in regard to the return so filed, it could not be said that any turnover of the dealer had escaped assessment within the provisions of that rule. There, after the Commercial Tax Officer had estimated the turnover, the Deputy Commissioner had remanded the case after setting aside the order in appeal and directing the officer to estimate the turnover on proper material and it was argued that this would be a case of escaped turnover and the limitation prescribed by the rule would be attracted. While repelling this part of the submission, reference was made to the decision of the Supreme Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur : [1964]51ITR557(SC) , and, from that case, the following observations by Subba Rao, J., with regard to the provisions of section 11A of the C.P. and Berar Sales Tax Act, 1947, were quoted :

'On the said analogy, the assessment proceedings under the Sales Tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. Before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net ........

It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act.'

22. The court further indicated that in that case it was observed that 'a case would be pending till a final order of assessment was made by the highest tribunal or court under the Act'. This shows that for the purpose of assessment, hierarchy of the final courts constructed by the statute has to be kept in view and the process of assessment and the jurisdiction with regard to assessment are independent and distinct than the jurisdiction and the process with regard to assessment which may ensure or be required to be carried on because of the stated contingencies including the one of escaped assessment or turnover.

23. That being the clear position of law, as far as the jurisdiction is concerned, Mr. Manohar is not right in invoking the provisions of section 35 or in contending that that was the only provision under which the proceedings could be taken against the petitioner. Upon careful consideration of the submissions made by the learned counsel, we are of the view that the power under section 57 was very much available to correct the apparent errors in the matter of application of law which for the purposes of the present petition are not in dispute.

24. Mr. Manohar also contended that there was error even in exercise of the power under section 57 by the revisional authority, in that the particulars with regard to set-off and deductions were not indicated in the proposed orders which were mandatorily required to be made and, therefore, the order were bad.

25. We are not impressed by this submission. No new material has been used against the petitioner. Only, as we indicated above, the law is applied to the facts and figures which were already the part of the record may the part of the order. It is not as if any other material was being relied on by the authority of which any notice was required to be given. After perusing the record, we find ourselves unable to hold that any defect of want of particularised notice can affect the order made.

26. In the result, we find no merit in the present petitions and the same would stand dismissed with costs.

27. Mr. Manohar prayed for leave to appeal under article 133 of the Constitution of India. Though the question is one of jurisdiction, we feel that we have decided the same by applying he ratio of the decision of the Supreme Court and the prayed, therefore, cannot be granted. Leave is refused.

28. Same said points are urged with regard to the orders made by the revisional authority for the period 1st January, 1965, to 31st December, 1965, in Special Civil Application No. 200 of 1970. For the above reasons, the said petition and prayer for leave is also dismissed with costs.

29. Petitions dismissed.


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