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Electro Mechanical Corporation and Canara Chemical Corporation Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberS.T.R.P. No. 46 of 1973
Judge
Reported inILR1974KAR608; 1974(1)KarLJ337; [1974]33STC551(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 20, 20(1), 20(2), 20(4) and 23(1)
AppellantElectro Mechanical Corporation and Canara Chemical Corporation
RespondentThe State of Mysore
Appellant AdvocateA.V. Albal, Adv.
Respondent AdvocateM.P. Chandrakantaraj Urs, High Court Government Pleader
Excerpt:
.....assessment, but the service of a 'notice of assessment'.hence, the appellant's appeal before the deputy commissioner was clearly barred by time. sub-section (2) provides that if the assessing authority is satisfied that any return submitted under sub-section (1) is correct and complete, he shall assess the dealer on the basis thereof. sub-section (3) provides 'that if no return is submitted by the dealer under sub-section (1) before the date prescribed or specified in that behalf, or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall assess the dealer to the best of his judgment, recording the reasons for such assessment' (underlining (here italicised. if the dealer is not satisfied with such an assessment..........1972. 2. the short question that arises for decision is whether the petitioner's appeal before the deputy commissioner of commercial taxes against the order of assessment made on him by the additional commercial tax officer, v circle, bangalore, was within time. 3. the petitioner is a dealer registered under the act. by the assessment order dated 31st march, 1971, made by the additional commercial tax officer, v circle, bangalore, a sum of rs. 6,526 was assessed as tax payable for the period 1st april, 1969, to 31st march, 1970. the assessment was made on the best of judgment basis after rejecting the return submitted by the petitioner. the notice of demand was served on him on 24th november, 1971. he applied on 29th december, 1971, for a copy of the assessment order which had not been.....
Judgment:
ORDER

Govinda Bhat, C.J.

1. This is a revision petition by a dealer under section 23(1) of the Mysore Sales Tax Act, 1957 (hereinafter called the Act), and it is directed against the order of the Mysore Sales Tax Appellate Tribunal, Bangalore, dated 2nd March, 1973, made in S.T.A. No. 756 of 1972.

2. The short question that arises for decision is whether the petitioner's appeal before the Deputy Commissioner of Commercial Taxes against the order of assessment made on him by the Additional Commercial Tax Officer, V Circle, Bangalore, was within time.

3. The petitioner is a dealer registered under the Act. By the assessment order dated 31st March, 1971, made by the Additional Commercial Tax Officer, V Circle, Bangalore, a sum of Rs. 6,526 was assessed as tax payable for the period 1st April, 1969, to 31st March, 1970. The assessment was made on the best of judgment basis after rejecting the return submitted by the petitioner. The notice of demand was served on him on 24th November, 1971. He applied on 29th December, 1971, for a copy of the assessment order which had not been furnished to him by the assessing authority. The copy of the assessment order was furnished to the petitioner on 21st January, 1972, and he preferred the appeal on 2nd February, 1972, before the Deputy Commissioner of Commercial Taxes under section 20 of the Act.

4. The Deputy Commissioner of Commercial Taxes dismissed the petitioner's appeal on two preliminary grounds, viz., (i) that the appeal had been preferred beyond the period of thirty days from the date of service of notice of demand, and (ii) that the appeal was not accompanied by satisfactory proof of payment of tax not disputed in the appeal. Against the said order, the petitioner preferred a second appeal before the Tribunal which reversed the decision of the Deputy Commissioner on the second ground, but affirmed his decision on the first ground of the appeal being barred by limitation. Aggrieved by that order of the Tribunal, the petitioner has preferred this revision petition.

5. The Act confers on a dealer aggrieved by any order of assessment made thereunder the right of two appeals to two statutory authorities named under the Act and, ultimately, the remedy of approaching this court by way of a revision petition. Section 20 is the provision which confers the right of a first appeal to the Deputy Commissioner where the order of assessment is made by a Commercial Tax Officer. Sub-section (2) of section 20 prescribes the period of limitation for an appeal under sub-section (1) of that section. Sub-section (4) of that section states that the appeal shall be in the prescribed form and shall be verified in the prescribed manner. Sub-sections (1) and (2) of section 20 of the Act read thus :

'20. Appeals.- (1) Any person objecting to an order affecting him passed under the provisions of this Act by -

(i) an Assistant Commercial Tax Officer, may appeal to the Assistant Commissioner; and

(ii) a Commercial Tax Officer, may appeal to the Deputy Commissioner.

(2) The appeal shall be preferred within thirty days -

(i) in respect of an order of assessment, from the date on which the notice of assessment was served on the appellant, and

(ii) in respect of any other order, from the date on which the order was communicated to the appellant :

Provided that the appellate authority may admit an appeal preferred after the period of thirty days aforesaid if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.' (underlining (Here italicised.) is ours.)

6. It is clear from a reading of the above provision that the period of limitation for a first appeal under the Act is thirty days from the date on which the notice of assessment was served on the assessee. Neither the expression 'notice of assessment' nor the word 'assessment' has been defined under the Act. The contention of Sri. A. V. Albal, learned counsel for the petitioner was that the clause 'the date on which the notice of assessment was served on the appellant' occurring in section 20(2)(i) of the Act means the date on which the assessment order recording the reasons for such assessment is served on the assessee and it is not the date when only the notice in form 6 unaccompanied by the assessment order recording the reasons for such assessment is served on the assessee. Sri Chandrakantaraj Urs, learned Senior High Court Government Advocate, contended that the notice of assessment has been prescribed in form No. 6 of the Rules framed under the Act and the limitation for an appeal under section 20 commences from the date on which the notice in form 6 is served and that there is no provision either under the Act or the Rules requiring the furnishing of the assessment order giving reasons for such assessment along with form 6 notice. In support of his contention, the learned counsel relied on an earlier judgment of this court in Giriyappa Setty & Sons v. State of Mysore ([1967] 19 S.T.C. 197.) delivered by Hegde, J. That decision, no doubt, supports the contention of Sri Urs. In the said case, notice in form No. 6 had been served on the assessee on 13th August, 1958, and the appeal was filed only on 28th February, 1963, nearly five years after the service of notice in form No. 6. After setting out the notice in form No. 6, this is what Hegde, J., stated :

'........ That notice purports to be a notice of final annual assessment and demand. No other form entitled as 'notice of assessment' was brought to our notice. In our opinion, form No. 6 combines a 'notice of assessment' as well as a 'notice of demand'. That being so, the service of notice in form No. 6 must be considered as a service of a 'notice of assessment' as contemplated by section 20(1).

7. There is no provision in the aforementioned Act or the Rules framed thereunder requiring the assessing authority to serve a copy of his order of assessment on the assessee. If the assessee required a copy of that order, rule 22 provides that he should be given a copy of the same on an application. The starting point of limitation for filing an appeal under section 20 is not the service of a copy of the order of assessment, but the service of a 'notice of assessment'. Hence, the appellant's appeal before the Deputy Commissioner was clearly barred by time.'

8. Since the decision in Giriyappa Setty's case ([1967] 19 S.T.C. 197.) concludes the question raised before us, ordinarily we should have referred the question to a Full Bench, as, in our opinion, the said decision has not taken a correct view of the law. But, it is unnecessary to refer the question to a Full Bench in view of the decisions of the Supreme Court to which we shall presently refer.

9. Before the decision in Giriyappa Setty's case ([1967] 19 S.T.C 197.), another Bench of which Hegde, J., himself was a member, had taken the view (vide C.R.P. No. 401 of 1960 decided on 10th January, 1962) that the expression 'notice of assessment' in section 20 should be construed as an 'order of assessment'. The earlier decision, however, was explained by the learned Judge on the ground that it had proceeded on the basis of certain admissions made by the counsel for the revenue. When there was an earlier decision by a Bench, the proper course was to refer the question to a Full Bench, had Hegde, J., doubted the correctness of his own earlier decision.

10. It is a settled rule of construction of statutes that the provisions of an Act are not to be construed with reference to the Rules made thereunder or the forms prescribed by the Rules. On the contrary, the Rules have to be construed with reference to the provisions of the Act under which they are made. When the Legislature enacted section 20 of the Act conferring the right of appeal to an aggrieved assessee and also prescribed a period of limitation thereunder, it did not have before it form No. 6. Therefore, it was not right to construe the provisions of section 20 with reference to a form of notice prescribed under the Rules.

11. The Bench which decided Giriyappa Setty's case ([1967] 19 S.T.C. 197.) did not notice section 12 of the Act which throws light on what was intended by the expression 'notice of assessment'. Section 12 occurs in Chapter V under the heading 'Returns, assessment, payment, recovery, composition and collection of tax'. Sub-section (1) of section 12 provides for submission of returns by every dealer. Sub-section (2) provides that if the assessing authority is satisfied that any return submitted under sub-section (1) is correct and complete, he shall assess the dealer on the basis thereof. Sub-section (3) provides 'that if no return is submitted by the dealer under sub-section (1) before the date prescribed or specified in that behalf, or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall assess the dealer to the best of his judgment, recording the reasons for such assessment' (underlining (Here italicised.) is ours). Assessment contemplated under section 12 is one either under sub-section (2) or under sub-section (3). The assessment under sub-section (2) is where the assessing authority accepts the return submitted by the dealer. The assessment under sub-section (3) is one where the assessing authority does not accept the return as correct and complete. In an assessment under sub-section (3) the assessing authority required to record the reasons for such assessment; he may not accept the turnover submitted or the rate of tax in respect of the goods concerned. If the dealer is not satisfied with such an assessment order he has the right of appeal provided under the Act. Sub-section (4) of section 20 to which reference has been made in the earlier part of this order states that the appeal shall be in the prescribed form and shall be verified in the prescribed manner. In the form of appeal prescribed, the appellant has to show the disputed turnover and where the rate of tax is disputed, such rate. He has also to state the grounds of appeal. The 'assessment' referred to in clause (i) of sub-section (2) of section 20 is obviously the assessment made under sub-section (3) of section 12 of the Act. That 'assessment' ought to contain the reasons for making it. Before the aggrieved assessee could prefer any appeal raising the grounds of appeal in the appeal petition, it is common sense that tells that he should know the reasons for the 'assessment' which he challenges in the appeal.

12. A question arose before the Supreme Court as to what constitutes 'notice' of an award for the purpose of making an application for reference to the civil court under section 18 of the Land Acquisition Act, 1894. Under section 11 of the Land Acquisition Act, the Collector, after enquiry, makes his award. Sub-section (2) of section 12 of the said Act requires that the Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by the representative when the award is made. Where any person interested does not accept the award, he has to make an application to the Collector requiring him that the matter be referred for determination by the court. The proviso to sub-section (2) of section 18 of the Land Acquisition Act provides that every such application shall be made within six weeks from the date of the Collector's award where the person making it was present or represented before the Collector at the time when he made his award and, in other cases, within six weeks of the receipt of the 'notice' from the Collector under sub-section (2) of section 12 or within six weeks from the date of the Collector's award whichever period first expired.

13. In Harish Chandra v. Deputy Land Acquisition Officer : [1962]1SCR676 , Gajendragadkar, J. (as he then was), who delivered the judgment of the Bench said :

'Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by the Collector under section 12 of the Land Acquisition Act, 1894, either actual or constructive, is an essential requirement of fair-play and natural justice. Therefore, the expression 'the date of the award' used in proviso (b) to section 18(2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually or constructively. It will be unreasonable to construe the words from the date of the Collector's award used in the proviso to section 18 in a literal or mechanical way.'

14. In State of Punjab v. Qaisar Jehan Begum : [1964]1SCR971 , after reiterating the view of Gajendragadkar, J., S. K. Das J., said :

'Knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award.'

15. As stated earlier, the object of prescribing a period of thirty days for preferring an appeal under section 20 of the Act is that the aggrieved assessee should have sufficient time to prepare his appeal petition, and that he should know the reasons recorded by the assessing authority against which he has to raise appropriate grounds in the appeal petition. In our judgment, the expression 'notice of assessment' occurring in section 20(2)(i) of the Act means knowledge of the assessment order recording the reasons for such assessment. It is only when a copy of the notice of the assessment order is served on the assessee it can be said that he has notice of assessment. Therefore, the period of limitation for an appeal has to be computed from the date on which the notice of assessment order was served on the petitioner. With respect, the decision in Giriyappa Setty's case ([1967] 19 S.T.C. 197.) does not lay down the correct law.

16. For the reasons stated above, we reverse the order of the Tribunal on the question of limitation and hold that the petitioner's appeal before the Deputy Commissioner was in time. The Tribunal has disposed of the appeal merely on the question of limitation, and has not considered the merits of the petitioner's appeal. The Deputy Commissioner has also not considered the merits of the appeal. Therefore, the matter has to go back to the Deputy Commissioner. Accordingly, the matter is remitted to the Deputy Commissioner to readmit the petitioner's appeal and dispose of the same in accordance with law. There will be no order as to costs.

17. Petition allowed.


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