P.A. Choudary, J.
1. The petitioner in this T.R.C. is a dealer within the meaning of the A.P. General Sales Tax Act. The petitioner deals in paddy and rice. On 25th March, 1976, the assessment of the petitioner relating to the assessment year 1971-72 was made by the assessing authority on beast of judgment basis. Tax was imposed on a total estimated turnover of Rs. 10,00,000.
2. Against that order of assessment, the petitioner-assessee preferred an appeal to the Assistant Commissioner under section 19 of the abovementioned Act. That appeal was partly allowed be the appellate authority and assessment was confined by the appellate authority to a turnover of Rs. 2,56,210.
3. Long prior to the order of assessment made on 25th March, 1976, the record slips and other materials in possession of Jayalakshmi Rice Mill which is a third party to these proceedings were inspected by the assessing authority. But the material which those books furnished was not taken note of by the assessing authority in making the order of assessment on 25th March, 1976. However, on 20th March, 1979, i.e., about two years after the Assistant Commissioner had allowed the assessee's appeal, the assessing authority issued a notice under section 14(4) of the above Act calling upon the assessee to show cause why escaped turnover should not be brought to tax. The escaped turnover mentioned in the notice represents Rs. 4,14,750. After following the procedure, the assessing authority reassessed the assessee on 26th March, 1979, on a turnover of Rs. 6,71,060. Against that order of reassessment, the assessee had preferred another appeal before the appellate authority and subsequently to the Sales Tax Appellate Tribunal. Having failed before those Tax Tribunals, he has come to this Court by way of this T.R.C.
4. Sri Venkatarama Reddy had concentrated his whole argument on only one point, viz., that the assessing authority has no jurisdiction to make the order of reassessment on 26th March, 1979 once, after the Assistant Commissioner, the appellate authority, had passed its order allowing the assessee's appeal on 31st January, 1977, fixing the net turnover of the assessee at Rs. 2,56,210. That is the only point that has been argued by the learned counsel before us. We propose to examine only that question.
5. The argument of the learned counsel is based upon rule 31 of the A.P. General Sales Tax Rules, 1957. Learned counsel argued that, while section 14(4) of the Act confers jurisdiction and authority on the assessing authority to reassess escaped turnover, that power cannot be exercised as per the provisions of rule 31(6). It is necessary to note that rule 31 is a rule made under section 39 of the Act. Section 39 empowers the State Government to make rules by notification for the purposes of the Act. Now, rule 31(1), in material portion, may be read. It runs as follows :
'31. (1) If for any reason the whole or any part of the turnover of business of a dealer .............. has escaped assessment to tax ......... the assessing authority ........... subject to the provisions of sub-rule (6), may, ........... determine to the best of his judgment the correct turnover, and assess the tax payable on such turnover ........ after issuing a notice to the dealer ........ and after making such inquiry as he considers necessary.'
6. A plain reading of the language of rule 31(1) clearly shows that the purpose of this rule is to carry out the purpose already mentioned in section 41(4) under which 'where the whole or any part of the turnover of a business of a dealer has escaped assessment to tax ....... the assessing authority may, after issuing a notice to the dealer and after making such enquiry as he may consider necessary, by order, setting out the grounds therefor' reassess the dealer. Thus, the purpose of both section 14(4) and rule 31(1) is one and the same, which is to bring to tax that part of the turnover of business of a dealer which has escaped assessment. But the argument of the learned counsel for the assessee is that the power which has been conferred under rule 31(1) is expressly made subject to sub-rule (6) of rule 31. The material part of sub-rule (6) of rule 31 reads as follows :
'Where in respect of the turnover referred to in sub-rule (1) ...... an order has already been passed under section 19 or 20, the assessing authority shall make a report to the appropriate appellate or revising authority, as the case may be, who shall thereupon, after giving the dealer concerned a reasonable opportunity of being heard, pass such orders as it deems fit.'
7. Sub-rule (7) directs the assessing authority to give effect to the orders which are passed under sub-rule (6). The argument of the learned counsel for the petitioner is that the reassessment which has been made by the assessing authority on 26th March, 1979, is with respect to the turnover referred to in sub-rule (1) of rule 31, and as that turnover was already made subject to an appellate order passed by the Assistant Commissioner on 31st January, 1977, the assessing authority can only report to the Assistant Commissioner the fact of escaped turnover without himself being competent to reassess the escaped turnover. This argument has to be examined in the light of the language which has been used both in sub-rule (1) and sub-rule (6) of rule 31. But, above all, this argument has to be examined keeping in view the fact that these rules are made under section 39 of the Act to give effect to the purpose of the Act.
8. We have already noted that section 14(4) of the Act provides for the reassessment to be made by the assessing authority where a whole or a part of the turnover of a dealer has escaped assessment to tax. Now the turnover either in whole or in part can be said to have escaped assessment either by reason of the fact that the return filed by the dealer was not accurate or by the reason of the fact that the assessing authority in assessing the turnover had not applied his mind diligently and carefully [see State of Madras v. Balu Chettiar : AIR1957Mad681 ]. Now when once the turnover had escaped assessment, section 14(4) gives the power of reassessment to the assessing authority. Obviously section 14(4) of the Act is based upon the theory that the liability to pay tax is anterior to its quantification and is laid by the statute itself. Now, if we examine the language of sub-rule (1) of rule 31, we find that that language is wholly in harmony and consistent with the purpose of section 14(4). Rule 31(1) says that if for any reason whatsoever the whole or any part of the turnover of a business of a dealer has escaped assessment, the assessing authority may determine to the best of his judgment the correct turnover and assess the tax. But sub-rule (1) of rule 31 makes the power under that rule subject to the provisions of sub-rule (6). Sub-rule (6) speaks of turnover referred to in sub-rule (1) of rule 31. Now, according to sub-section (6), where in respect of the turnover referred to in sub-rule (1) of rule 31 an order has already been passed under the appellate provisions of section 19 or the revisional powers of section 20 in the Act, the assessing authority shall not reassess in exercise of his powers under sub-rule (1) of rule 31. Sub-rule (6), in such a situation, requires the assessing authority to make a report to the appropriate appellate or revising authority pointing out the fact of escaped turnover. The argument of the learned counsel for the petitioner is that his turnover has already been passed upon by the Assistant Commissioner under section 19 of the Act on 31st January, 1977. Therefore, the provisions of sub-rule (6) of rule 31 are attractive to the facts of this case debarring the assessing authority from exercising its powers of reassessment under rule 31. According to this argument, all that the assessing authority can do under sub-rule (1) of rule 31 is to report to the Assistant Commissioner as the assessing authority himself has assessed in this case. Therefore, the argument is that the assessment is liable to be quashed. In order to accept this argument, we must examine the implications of this question. The implication of the argument is that the turnover which was assessed by the Assistant Commissioner on 31st January, 1977, is the same turnover of which sub-rule (1) of rule 31 speaks of. The argument is based upon the assumption that where the whole or any part of the turnover of business of a dealer is dealt with by an appellate order under section 19 or revisional order under section 20 of the Act, the assessing authority will be debarred from exercising its powers of reassessment. It appears to us that this argument cannot be accepted. The words used in sub-rule (6) of rule 31 in respect of the turnover referred to in sub-rule (1) of rule 31 do not refer merely to the whole or part of the turnover of business of a dealer. Sub-rule (1) of rule 31 refers to turnover of business of a dealer that has escaped assessment to tax. That description of sub-rule (1) of rule 31 referring to turnover that has escaped to assessment cannot but refer to any part of the turnover that was not brought to tax. For whatever reasons that might be where an appellate power is exercised under section 19 of the Act and only a part of the real turnover was assessed by the appellate authority, the remaining turnover which was never brought to assessment and had never fallen for consideration of the appellate authority can rightly be described as turnover that has escaped assessment. The use of the words 'any part' in contradistinction to the words 'the whole' occurring in sub-rule (1) of rule 31 makes this meaning clear. This means denial of immunity from reassessment at the hands of the assessing authority on the ground that the part of the turnover had already been assessed by the appellate authority. What then is the scope of sub-rule (6) of rule 31 The real scope of sub-section (6) of rule 31 is to give finality to the appellate orders. This finality is sought to be ensured not by denying the basic potulate of the statute which is the taxee's levy by the statute and that the quantification alone is left to the petitioner. That finality is sought to be assured by sub-rule (6) of rule 31 by denying the power of reassessment to the assessing authority under sub-rule (1) of rule 31 only with respect to that turnover which has escaped assessment and which has been dealt with by the appellate authority under section 19. In other words, where the appellate power has been exercised in respect of the escaped turnover, that same turnover cannot be said to be subject to the reassessment process mentioned in sub-rule (6) of rule 31. That is based upon the principle of hierarchical superiority within the administration of justice required to be accorded to an appellate order on a revisional order. But we should not forget the anxiety of the statute to collect the lawful dues to the State.
9. Thus alone, we can harmonies rule 31(1) and sub-rule (6) with the purposes of section 14(4) of the Act. Of course, Sri P. Venkatarama Reddy, the learned counsel for the petitioner, had argued on the basis of the judgments reported in C.T. Senthilnathan Chettiar v. State of Madras : 67ITR102(SC) , Commissioner of Income-tax v. Straw Products Ltd. : 60ITR156(SC) , K. S. Venkataraman and Co. (P.) Ltd. v. State of Madras : 60ITR112(SC) . We, sitting in tax revision cases, cannot hold sub-rule (6) of rule 31 as void or ultra vires of the rule-making power. No doubt, there is a general view prevalent that the Tribunal created under a statute cannot go into the validity of the provisions of the statute, but to what degree and to what extent this negative postulate would apply and what positively the Tribunal should do in case like this is not at all made clear. We are assuming for the purpose of this case that out powers are the same as that of the Tribunal. But is then the Tribunal debarred from making a choice between giving effect to sub-rule (6) denying jurisdiction of reassessment to the assessing authority which was clearly averred under section 14(4) or ignoring sub-section (6) and giving effect to the provisions of the statute under which sub-rule (6) was enacted. No decision has been placed before us showing that even the Tribunal acts without jurisdiction when it refuses to give effect to a subordinate legislation which it finds to be inconsistent with the statutory enactment under which the Tribunal acts and under which the subordinate legislation was purported to have been made. The task of ascertaining law under the Sales Tax Act is inescapable for the Tribunal. That task can be discharged only by resolving the power between two apparently inconsistent provisions and if necessary by ignoring that provision which is of lesser efficacy as compared with the parent statute which is of higher legal efficacy. But in view of our interpretation of sub-rule (6) of rule 31 which is based upon the principle of giving effect to the hierarchical superior orders, it is not necessary for us to hold sub-rule (6) of rule 31 as interpreted by us to be ultra vires of the rule-making powers of the State Government under section 39.
10. Applying the above, we have to notice that the appellate order in this case passed by the Assistant Commissioner on 31st January, 1977, had not taken into account all the materials which are collected from Jayalakshmi Rice Mill on 31st January, 1974. Those materials are capable of showing that a part of the turnover of business of the petitioner had escaped assessment. As that material has not been dealt with by the appellate authority or the revisional authority under section 19 or 20, we hold that the power of the assessing authority to reassess the escaped turnover is still available and is not subject to the limitation of sub-rule (6) of rule 31. For the above reasons, we dismiss this T.R.C., but in the circumstances without costs. Advocate's fee Rs. 150.
11. Petition dismissed.