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G.K. Chikanarasimhiah and anr. Vs. the Assistant Commissioner of Commercial Taxes, Bangalore City Division, Bangalore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 1395 and 1396 of 1969
Judge
Reported in[1971]28STC98(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 5(1), 5(4), 12-A and 21; Mysore Sales Tax Rules - Rule 38
AppellantG.K. Chikanarasimhiah and anr.
RespondentThe Assistant Commissioner of Commercial Taxes, Bangalore City Division, Bangalore
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateP.K. Shyamsundar, High Court Government Pleader
Excerpt:
- section 142: [k.ramanna,j] dishonour of cheque complaint by manager of partnership firm maintainability - cheque issued to partnership firm - complaint filed by a person who was neither partner nor authorized by partners to file complaint held, authorisation is necessary. even a person who is looking after entire business affairs of firm cannot file such complaint without authorization. in the absence of authorization, complaint is liable to be dismissed. - section 21 empowers the revisional authority to revise the orders passed by subordinate authorities, if on examination of the record, the revisional authority is satisfied that the order of the subordinate authority is not legal or proper......transferring some cases of higher assessment to the assistant commissioner of commercial taxes for assessment etc. as per rules. accordingly, the undersigned has to take action in reopening the assessments referred to above and to assess the turnover of coriander noted above. the levy of tax on the turnover of coriander will be in addition to the tax imposed on the turnover of other articles in the assessment referred to above. the time before the undersigned to revise the assessment for the year 1963-64 is very short. but, to effect such assessment without giving you an opportunity to put forth your objections, if any, would be improper. hence, a clear opportunity is now given hereby calling upon you to file the objections, if any, within four days from the date of receipt of.....
Judgment:
ORDER

Govinda Bhat, J.

1. The petitioners are dealers carrying on business, inter alia, in coriander. Their claim for exemption of their turnover from tax under the Mysore Sales Tax Act, 1957, hereinafter called the 'Act' was allowed by the Commercial Tax Officer on the ground that coriander is an 'oil-seed' and as such liable to tax only at a single point in the manner provided by sub-section (4) of section 5 read with Schedule IV of the Act. The Commissioner of Commercial Taxes transferred the assessment files to the Assistant Commissioner of Commercial Taxes, the respondent in these writ petitions. The respondent initiated proceedings under section 12-A of the Act read with rule 38 of the Mysore Sales Tax Rules proposing to levy tax on the turnover of coriander under section 5(1) of the Act. The notices in these cases are similar and it is therefore sufficient if we set out one notice in Writ Petition No. 1395 of 1969 marked as exhibit 1. It reads :-

'No. T. 2150/68-69

Office of the Asst. Commissioner of Commercial Taxes,

Bangalore City Division,

Bangalore,

dated 22nd March, 1969.

Notice under section 12-A read with rule 38 of the Mysore Sales Tax Act, 1957, and Rules framed thereunder :

Please take notice that assessment for the year 1963-64 has been concluded in your case. But the turnover of dhania (i.e. coriander) appears to have not been assessed to tax, considering that coriander was oil-seed. In the case of oil-seeds, subsequent sales or purchases made are not liable to tax, as these articles are liable to single point system of taxation. Coriander was considered as an oil-seed at the time of completing the assessment. But it is now made clear, under expert opinion, that coriander is not an oil-seed, but only an article of spice. It is therefore clear now that the omission of coriander is improper, in view of the expert opinion, that coriander is a spice. Accordingly, coriander is liable to tax under multi-point system of taxation under section 5(1) of the M.S.T. Act, 1957, i.e., this article is liable to tax at 2% during the year under question. The turnover declared by you as per your return of turnover and as per the noting of the officer who verified your books of accounts etc., is as noted in the margin.

------------------------------------------------------------------------ Turnover of dhania declared. Turnover noted by the assessing officer as per the assessment order. Rs. 27,40,473.60 Rs. 27,40,473.60 ------------------------------------------------------------------------ It is, therefore, decided to reopen the assessment order under the M.S.T. Act, 1957, and to assess the turnover of coriander which has been improperly omitted from assessment. In this connection, your attention is invited to the notification issued by the Commissioner of Commercial Taxes in Mysore, Bangalore, transferring some cases of higher assessment to the Assistant Commissioner of Commercial Taxes for assessment etc. as per rules. Accordingly, the undersigned has to take action in reopening the assessments referred to above and to assess the turnover of coriander noted above.

The levy of tax on the turnover of coriander will be in addition to the tax imposed on the turnover of other articles in the assessment referred to above. The time before the undersigned to revise the assessment for the year 1963-64 is very short. But, to effect such assessment without giving you an opportunity to put forth your objections, if any, would be improper. Hence, a clear opportunity is now given hereby calling upon you to file the objections, if any, within four days from the date of receipt of this notice, failing which, it will be presumed that you have no objections against the above proposal and the assessment will be revised accordingly on the turnover of dhania filed by you for the above year.

Sd./- S. Rangappa,

Asst. Commissioner of Commercial Taxes,

Bangalore City Division, Bangalore.'

2. The petitioners have challenged the notices issued by the respondent on the following grounds : First, section 12-A relates to assessment of escaped turnover and the said section cannot be invoked for assessing the turnover of coriander which had been exempted earlier under the assessment orders. Secondly, coriander comes within the definition of the term 'other oil-seeds' mentioned in serial No. 5(d) of Schedule IV of the Act.

3. The turnover relating to coriander was before the assessing authority and it was exempted from tax on the view that it is an oil-seed liable to tax under section 5(4) read with serial No. 5(d) of Schedule IV of the Act. When the turnover was before the assessing authority and that turnover was specifically exempted from tax, it cannot be said that the said turnover is an escaped turnover. If on a wrong view of the law, the assessing authority has exempted the turnover, that order has to be corrected under section 21 of the Act in exercise of the revisional powers. In the notice issued by the Assistant Commissioner of Commercial Taxes set out above it is stated that the omission from assessment in respect of the turnover of coriander is improper in view of the expert opinion that coriander is a spice. The notice does not state that the turnover is an escaped turnover. If the exemption of the turnover was improper, then the matter is not one for proceeding under section 12-A but under section 21 of the Act as stated earlier. Section 21 empowers the revisional authority to revise the orders passed by subordinate authorities, if on examination of the record, the revisional authority is satisfied that the order of the subordinate authority is not legal or proper. Though the notice issued by the respondent purports to be one under section 12-A read with rule 38, the ground stated in the said notice is one that can be relied on only under section 21 for the purpose of revision. The Assistant Commissioner of Commercial Taxes who has issued the notice has no powers to revise the orders made by the Commercial Tax Officers. He can revise only the orders made by the Assistant Commercial Tax Officers. In the instant case, the assessment orders were made by the Commercial Tax Officer whose orders are not open to revision by the Assistant Commissioner of Commercial Taxes.

4. Rule 38 which is also relied on in the notice is wholly inapplicable to the circumstances set out in the notice. In order to invoke the powers under section 38 it must appear that the order sought to be rectified suffers from a mistake apparent on the record. Exhibit 1 does not state that the order made by the Commercial Tax Officer suffers from a mistake apparent from the record. On the contrary, the respondent relies on the expert opinion obtained subsequent to the date of the assessment order which is extraneous to the record.

5. For the above reasons, these writ petitions are allowed and the impugned notices marked exhibit 1 are quashed. No costs.

6. Petitions allowed.


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