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Government of Andhra (Now Andhra Pradesh) Vs. K. Rajaiah and Company - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberT.R.C. No. 62 of 1955
Judge
Reported in[1957]8STC164(AP)
ActsMadras General Sales Tax Act - Sections 12B(1); Madras General Sales Tax Rules, 1939 - Rule 17(1)
AppellantGovernment of Andhra (Now Andhra Pradesh)
RespondentK. Rajaiah and Company
Advocates:D. Venkatappayya Sastri, Adv. for ;M. Seshachalapati and ;R. Rajeswara Rao, Advs.
DispositionPetition dismissed
Excerpt:
.....17 (1) of madras sales tax rules, 1939 - notice by tax authority that part of turnover escaped assessment - officer without accepting accounts furnished by respondent determined assessment - appeal against assessment to appellate tribunal - tribunal held that officer has no jurisdiction to revise assessment after expiry of two years from date of original assessment - revision petition filed - petitioner contended under rule 17 (1) of rules as amended by government order on 11.06.1953 officer has power to revise assessment within three years from date of original assessment - assessment became final before amendment was introduced - as amendment has not either expressly or by necessary implication given it retrospectively so cannot effect final assessment already made - held,..........were assessed to sales tax for the year 1950-51 by the order dated 10th march, 1952. the deputy commercial tax officer issued a notice dated 26th march, 1954, to the respondents directing them to show cause why the assessment should not be revised on the ground that part of the turnover of their business escaped assessment. the respondents filed their accounts but the officer without accepting them by order dated 11th june, 1953, determined the assessment to the best of his judgment. while by his order dated 10th march, 1952, he fixed the turnover at rs. 25, 534 by his order dated 11th june, 1953, he increased it to rs. 83, 118-10-0. the assessees preferred an appeal against that order to the deputy commissioner of commercial taxes but it was dismissed. on further appeal, the.....
Judgment:

Subba Rao, C.J.

1. This is a revision against the order of the Andhra Sales Tax Appellate Tribunal setting aside that of the Deputy Commercial Tax Officer, Kakinada.

2. The facts are simple. The respondents were assessed to sales tax for the year 1950-51 by the order dated 10th March, 1952. The Deputy Commercial Tax Officer issued a notice dated 26th March, 1954, to the respondents directing them to show cause why the assessment should not be revised on the ground that part of the turnover of their business escaped assessment. The respondents filed their accounts but the officer without accepting them by order dated 11th June, 1953, determined the assessment to the best of his judgment. While by his order dated 10th March, 1952, he fixed the turnover at Rs. 25, 534 by his order dated 11th June, 1953, he increased it to Rs. 83, 118-10-0. The assessees preferred an appeal against that order to the Deputy Commissioner of Commercial Taxes but it was dismissed. On further appeal, the Appellate Tribunal held that the Deputy Commercial Tax Officer had no jurisdiction to revise the assessment after the expiry of two years from the date of the original assessment. Hence, the revision.

3. Learned counsel for the petitioner contends that under rule 17(1) of the Madras General Sales Tax Rules, 1939, as amended by G.O. No. 1635, Revenue, dated 11th June, 1953, the Deputy Commercial Tax Officer has power to revise the assessment within three years from the date of the original assessment. Rule 17(1) as amended reads :

'If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, may, at any time within three years next succeeding that to which the tax or licence fee relates, determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable on such turnover or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary.'

4. If this rule applies, the Deputy Commercial Tax Officer can revise the assessment at any time within three years next succeeding that to which the tax or licence fee relates. But learned counsel for the respondents contends that the amendment introduced by the aforesaid G.O. is not retrospective in operation and under the original rule the assessment could be revised only within two years next succeeding that to which the tax or licence fee related. The question, therefore, is whether the amendment is retrospective in operation.

5. A similar question arose on a construction of the provisions of the Limitation Act, in Lakshminarayana Chetty v. Additional Income-tax Officer (1956 An. W.R. 243). Under section 35 of that Act as it originally stood, the Appellate Assistant Commissioner or the Income-tax Officer may, within four years from the date of the order of assessment or other orders mentioned in the section made by him, rectify any mistake apparent from the record. But, under the amendment inserted by Act XXV of 1953, if on assessment or re-assessment of a firm any reduction or enhancement is made in the income of the firm and it is found that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner or though included it was not correct, the assessment can be reopened and corrected on the basis of the assessment of the firm and that the inclusion of the share of the partner in the assessment or the correction thereof shall be deemed to be a rectification of a mistake apparent from the record within the meaning of the section. The amending Act expressly stated that the said amended section came into operation from 1st April, 1952. It was argued in that case, as it is argued before us now, that the earlier assessment could be corrected even though four years had elapsed from the date of the original assessment. It could be done only if the amending Act had retrospective operation. The rule of construction pertinent to the principle of retrospectively was stated at page 246 thus :

'It is, therefore, clear from the statement of law made by recognised authorities that a statute effecting vested rights is prima facie prospective unless the statute expressly or by necessary implication indicates to the contrary. Even where it is retrospective in operation, courts should confine its operation only to the extent the language renders it necessary. Further if an Act is to a certain extent r retrospectivity, when we reach the line at which the words of the section cease to be plain, the same rule of construction leaning against retrospectivity should be applied.'

6. Applying those principles, the Division Bench held that, as the assessment had become final before the amendment, the amendment could not affect the rights conferred on the assessee. It is not disputed that the same principle will apply to the question now raised before us. As in that case, in this case the assessment has become final before the amendment was introduced. As the amendment has not either expressly or by necessary implication given it retroactivity, it cannot affect the final assessment already made. We, therefore, hold, though for different reasons, that the conclusion arrived at by the Tribunal is correct.

7. The revision fails and is dismissed with costs. Advocate's fee Rs. 100.


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