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Berar Oil Industries Vs. the State of Andhra (Now Andhra Pradesh) - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Tax Revision Cases Nos. 72 and 86 of 1957
Judge
Reported in[1961]12STC797(AP)
AppellantBerar Oil Industries
RespondentThe State of Andhra (Now Andhra Pradesh)
Appellant Advocate J.V. Srinivasa Row, ;G. Ranganatha Sastry and ; S. Bhaskaran, Advs.
Respondent Advocate The Second Government Pleader
Excerpt:
.....the points debated before us, it is necessary to set out in some detail the facts, which are somewhat exceptional. the firm unsuccessfully preferred an appeal to the deputy commissioner and then to the sales tax appellate tribunal. 318 and at page 329, they observed :no doubt in a general sense both rule 14(2) as well as rule 17(1) serve a common purpose, viz. therefore, the case clearly falls within the ambit of rule 17(1) and does not come within the scope of rule 14(2). there was no escaped assessment which the revising authority could re-open on the basis of the power vested in him under rule 14(2). it is, however, argued by the learned government pleader that the turnovers in question were included in the assessment files of the local dealers and were, therefore, before the revising..........exercise of the powers conferred on them, the state government framed the madras general sales tax rules. rules 14 and 17 are the main provisions which are relevant for the purposes of the present case. rule 14, as it stood after its amendment of the 7th february, 1948, read as follows :the following authorities may exercise the powers of the nature referred to in section 12(1) :- (i) the deputy commissioner of commercial taxes, and (ii) the commercial tax officer : 8. provided that the deputy commissioner of commercial taxes shall not revise an appellate order of a commercial tax officer acting under section 11 in respect of cases involving a turnover exceeding rs. 20,000.9. rule 17, which is the other material rule, after its amendment on 7th february, 1948, from whence it was in.....
Judgment:

Satyanarayana Raju, J.

1. These revision cases arise out of a common order passed by the Sales Tax Appellate Tribunal, Andhra, in T. A. Nos. 21 and 22 of 1956.

2. For appreciating the points debated before us, it is necessary to set out in some detail the facts, which are somewhat exceptional. The Berar Oil Industries is a firm with its head office at Akola (in what is now the State of Madhya Pradesh), carrying on business in the purchase and sale of groundnut seeds and groundnut oil. The firm has a branch at Adoni, which was formerly in the District of Bellary, and is now comprised in the District of Kurnool. There is a representative of the firm at Adoni who purchases groundnut seeds and oil from local merchants and agriculturists. The seeds and oil are exported to the firm's head office at Akola.

3. For the year 1950-51, the Deputy Commercial Tax Officer, Kurnool, determined the total turnover of the firm at Rs, 5,00,279-5-0 and assessed it to tax on the said turnover at the prescribed rates. This assessment was by consent and was completed on 7th February, 1952, and against the said order of assessment there was no appeal. For the same assessment year, one Venkataswami (a local dealer) was assessed to sales tax on a turnover of Rs. 4,62,390 under Section 14-A of the Madras General Sales Tax Act (hereinafter referred to as 'the Act') on the basis that he was an agent of a non-resident principal, the Berar Oil Industries.

3. For the subsequent assessment year 1951-52 the Deputy Commercial Tax Officer, Kurnool, determined the total turnover of the Berar Oil Industries at Rs. 6,00,858-13-3 and levied tax at the prescribed rates. The firm unsuccessfully preferred an appeal to the Deputy Commissioner and then to the Sales Tax Appellate Tribunal. For the same assessment year, Venkataswami, Dharma Reddi and Messrs Nevatia, Ltd., three local dealers, were assessed to sales tax on turnovers of Rs. 5,63,042-10-1, Rs. 2,93,946-7-3 and Rs. 6,12,560-1-3 respectively, as agents of the Berar Oil Industries, a non-resident principal. These three dealers contested their liability in respect of the turnovers on the ground that they represented purchases made by the Berar Oil Industries and that in regard to these transactions they acted merely as brokers. The Tribunal found that the Berar Oil Industries, Akola, are 'resident dealers' and not non-resident in view of the existence of their branch at Adoni within this State and that consequently the assessments of the local dealers, on their respective turnovers representing purchases made by them on behalf of the Berar Oil Industries, treating them as agents of a non-resident principal, were not warranted by the provisions of the Act. At the conclusion of its order, the Tribunal made the following observations:-

When the branch itself is here in this State, it is but proper that it should be looked upon for taxes due on all the transactions of the head office agents in the State. In this view the turnover of the appellants (agents) now in dispute relating to the business done on behalf of Berar Oil Industries should be included in the branch turnover of Berar Oil Industries, Adoni, and steps should be taken to revise the assessment orders passed against them.

4. Pursuant to the above observations of the Tribunal, the Deputy Commissioner, Anantapur, issued notices on the 12th June, 1955, to the Berar Oil Industries under Section 12(2) of the Act, to show cause why the firm should not be assessed to sales tax on the turnovers included in the assessments of Venkataswami, Dharma Reddi, and Nevatia, Ltd. After hearing the petitioners, the Deputy Commissioner passed orders including the respective amounts in the petitioners' turnover and assessed them to sales tax in addition to the turnovers for which they were originally assessed in the respective years. Against the orders passed by the Deputy Commissioner, the petitioners preferred appeals to the Sales Tax Appellate Tribunal, which by its order dated 2nd March, 1957, confirmed the additional assessments and dismissed the appeals. It is these orders of the Sales Tax Appellate Tribunal that are impugned in these revision cases.

5. It is contended by the petitioners that the Deputy Commissioner had no jurisdiction to act under Section 12(2) as the assessments related to 'escaped turnovers' in the respective years and the only provision under which such escaped turnovers could be assessed was Rule 17(1) of the Madras General Sales Tax Rules, and that the period of limitation prescribed by that rule having expired by the date the Deputy Commissioner issued notices to the petitioners the assessments were barred by time.

6. During the year of assessment 1951-52, with which we are now concerned, the, Madras General Sales Tax Act and the Rules made thereunder were in operation, and it is with reference to that Act and those Rules that these cases have to be decided. It will be convenient at this stage to refer to the relevant provisions. Section 12 is in these terms :-

(1) The Board of Revenue may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including Sub-section (2) of this section, for the purpose of satisfying itself as to the legality or propriety of such order, or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit.

(2) Powers of the nature referred to in Sub-section (1) may also be exercised by such authority or officer and in such class of cases as may be prescribed, including cases where an inferior authority or officer has exercised its or his powers under this sub-section.

(3) The powers conferred by Sub-sections (1) and (2) may be exercised by the Board of Revenue or by the authority or officer concerned as the case may be, suo motu at any time, or on application preferred within six months of the passing or recording of the order or proceeding in question.

7. The Act itself does not prescribe the assessing authority. The hierarchy of officials who are to assess and exercise appellate and revisicnal jurisdiction over orders of the assessing authorities were left to be prescribed by Rules. In exercise of the powers conferred on them, the State Government framed the Madras General Sales Tax Rules. Rules 14 and 17 are the main provisions which are relevant for the purposes of the present case. Rule 14, as it stood after its amendment of the 7th February, 1948, read as follows :

The following authorities may exercise the powers of the nature referred to in Section 12(1) :-

(i) The Deputy Commissioner of Commercial Taxes, and

(ii) The Commercial Tax Officer :

8. Provided that the Deputy Commissioner of Commercial Taxes shall not revise an appellate order of a Commercial Tax Officer acting under Section 11 in respect of cases involving a turnover exceeding Rs. 20,000.

9. Rule 17, which is the other material rule, after its amendment on 7th February, 1948, from whence it was in force, ran thus:-

(1) 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 the year or the two years next succeeding that to which the tax or licence fee relates, assess the tax payable on the turnover which has escaped assessment or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary.

(2) If for any reason any tax or licence fee has been assessed at too low a rate in any year, the assessing authority or the licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, revise the assessment or the licence fee after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary....

10. A Full Bench of the Madras High Court, consisting of Raja-mannar, C.J., Rajagopalan and Rajagopala Ayyangar, JJ., considered the precise scope of Rules 14(2) and 17(1) in State of Madras v. Louis Dreyfus and Company Ltd. [1955] 6 S.T.C. 318 and at page 329, they observed :

No doubt in a general sense both Rule 14(2) as well as Rule 17(1) serve a common purpose, viz., to gather revenue which has improperly escaped, but while Rule 14(2) is directed to the correction of improper or illegal assessment orders which have levied less or more tax than justified, Rule 17(1) lays emphasis on escaped turnover. The distinction between the two provisions might be expressed by saying that Rule 14(2) deals with escaped assessments and 17(1) with escaped turnovers, notwithstanding that the latter also would mean that a lesser amount of tax has been levied. So understood the two provisions would be completely reconcilable and the two jurisdictions-to revise assessments and to reopen them-would each be assigned to the proper authority.

11. The Full Bench further pointed out:-

'Turnover' escapes when it is not noticed by the officer either because it is not before him by reason of an inadvertence, omission or deliberate concealment on the part of the assessee, or because of want of care on the part of the officer the turnover though in the books has not been taken notice of. This would be the natural and normal meaning of the expression 'turnover which has escaped' in Rule 17(1).

12. After defining the precise content a.nd scope of Rules 14(2) and 17(1), the Full Bench pointed out that it would be possible to envisage 'an intermediate case between a truly escaped turnover...and a case where the turnover had not escaped-only it had escaped assessment by reason of some error on the part of the assessing officer.' Illustrat-tive of such a case is the one where the entire turnover is before the assessing officer but he fails to levy tax upon the whole or any part of it either because in his view it could not be included in the taxable turnover of the assessee or because of deductions allowed by him but fails to make a specific reference to these matters in the assessment order; in other words where only the final result is reflected in the order without the details as to how the computation was made being specifically noted in it, In this class of cases if by the record were meant only the assessment order, there may not be any reference to the particular transaction or turnover though as a fact this has been considered by the assessing authority though omitted to be referred in the assessment order. Therefore, the learned Judges pointed out that the expression 'record' would include not merely the assessment order but the entire assessment file and in the intermediate cases also if from a perusal of the record or the assessment files the revising authority can find that the turnover was before the assessing officer it is competent for it to pronounce upon the legality or propriety of the assessment order under Rule 14(2). They summed up their conclusion as follows :-

The revisional powers under Rule 14(2) cannot be exercised in cases to which Rule 17 applies .... Rule 17 applies only to cases of'escaped turnover' (as defined by them).

13. The Tribunal considered that the present case was akin to the 'intermediate case' referred to and illustrated by the Full Bench. Besides supporting the view taken by the Tribunal in this regard, Sri M.S. Ramachandra Row has argued that the case is covered by Rule 14-A.

14. From the statement of facts given in the earlier part of this judgment, it is clear that the petitioners did not include the purchases made by the local dealers as part of their turnover. It may also be noted that the local dealers themselves did not include these transactions in their turnover. But latterly, on an examination of the returns submitted by Venkataswami, Dharma Reddi and Nevatia Ltd., the assessing authorities held that the purchases made by them on behalf of the Berar Oil Industries should be included in their turnover as they were of the view that the local dealers were the agents of a non-resident principal, within the meaning of Section 14-A of the Act. The assessing authority in the case of Venkataswami was the Commercial Tax Officer, Anantapur. In the case of Dharma Reddi and Nevatia Ltd., the assessing authority was the Commercial Tax Officer, Adoni. The respective assessing authorities assessed the local dealers but the Tribunal held that Section 14-A was not attracted as the Berer Oil Industries has its place of business at Adoni, within the limits of this State. It was then that the Deputy Commissioner of Commercial Taxes, in the purported exercise of his powers of revision under Section 12(2) of the Act, gave notice to the petitioners and eventually assessed them to tax in respect of the purchase turnovers of groundnut seeds and groundnut oil on the basis that the petitioners themselves were resident principals and, therefore, 'dealers' within the meaning of the Act. We shall presently consider whether it was competent to the Deputy Commissioner to exercise this power of re-assessment on the petitioners as revising authority, but, initially, we shall address ourselves to the question as to whether the case of the petitioners falls within Rule 14(2) or Rule 17(1).

15. Whether it was a case of omission or of deliberate concealment on the part of the petitioners, the fact remains that they did not submit any return with regard to the disputed turnover. It was the default on the part of the assessee that led to the escape of the turnover from assessment to the tax lawfully due. Therefore, the case clearly falls within the ambit of Rule 17(1) and does not come within the scope of Rule 14(2). There was no escaped assessment which the revising authority could re-open on the basis of the power vested in him under Rule 14(2). It is, however, argued by the learned Government Pleader that the turnovers in question were included in the assessment files of the local dealers and were, therefore, before the revising authority as part of the assessment file of the Berar Oil Industries. This argument involves a fallacy. It is, no doubt, true that the turnovers were included by the assessing authorities in the assessments made upon Venkataswami, Dharma Reddy and Messrs Nevatia Ltd. But they were not included in the turnover of the petitioners. When Rule 14(2) speaks of 'the record of any order passed', it must necessarily refer to the record of the order passed upon the petitioners and the record of the assessment of the local dealers can, in no sense, be the record of the assessment made on the petitioners except on the supposed 'basis of their being the agents of the principal. The order of the Tribunal on the former occasion itself shows that they could not be treated as the agents. They were mere brokers or intermediaries of a resident dealer. The fact, therefore, that the disputed turnovers were included in the assessments of those dealers would not justify the Deputy Commissioner in treating their assessments as part of the record of the petitioners' assessment.

16. The intermediate case envisaged by the Full Bench is a case between a truly escaped turnover and a case where the turnover has not escaped, that is, where it has only escaped assessment by reason of some error on the part of the assessing officer. The intermediate case which the Full Bench contemplated is not akin to the present case where the initial assessing authority had at no time included the disputed turnover in the 'record'.

17. We are, therefore, of opinion that the case is clearly one coming under Rule 17(1).

18. As already indicated, Mr. Ramachandra Row, learned Government Pleader, strongly relied upon Rule 14-A as giving the Deputy Commissioner jurisdiction to what he calls 'revision of assessment'. Rule 14-A reads :-

14-A. Where the tax as determined by the initial assessing authority appears to the appellate authority under Section 11 or revising authority under Section 12 to be less than the correct amount of the tax payable by the dealer, the appellate or revising authority shall, before passing orders, determine the correct amount of tax payable by the dealer issuing a notice to the dealer and after making such enquiry as such appellate or revising authority considers necessary.

19. Here, it is necessary to consider the scheme of the Act. Section 2(a-2) defines an 'assessing authority' as meaning 'any person authorised by the State Government to make any assessment under this Act.' Section 14(1) provides that 'any officer empowered by the State Government in this behalf may, for the purposes of this Act, require any dealer carrying on business in any kind of goods to produce before him the accounts, registers and other documents and to furnish any other information relating to such business.' Pursuant to the powers conferred by Clause (a) of Section 2 and Sub-sections (1) and (2) of Section 14 of the Madras General Sales Tax Act, 1939 (Madras Act IX of 1939), His Excellency the Governor of Madras by means of a Notification authorised the following officers to exercise the powers of assessing authorities-

(a) Assistant Commercial Tax Officers.

(b) Deputy Commercial Tax Officers.

(c) Commercial Tax Officers.

(d) Special Commercial Tax Officers.

20. The above officers were, therefore, empowered to exercise the powers of an 'assessing authority', the jurisdiction of each depending upon the quantum of turnover to be dealt with by them. It will be seen that the Deputy Commissioner of Commercial Taxes is not one of those included in the hierarchy of officials empowered to function as an 'assessing authority'. He is only constituted as an appellate or revi-sional authority under Section 12 read with Rule 13. According to the learned Government Pleader, Rule 14-A empowers the Deputy Commissioner to re-assess the petitioners to tax in respect of the escaped turnover. Rule 14-A, as is clear from the language, contemplates the case of a tax determined by the initial assessing authority. Where an appellate or revising authority considers that the tax so determined is less than the correct amount of the tax payable by the dealer, it is open to the revising authority to determine the correct amount of tax payable by the dealer after following the prescribed procedure. The very basis on which power of revision envisaged by Rule 14-A could be exercised, therefore, should be with reference to the tax determined by the initial assessing authority. In the present case, it is admitted that the initial assessing authority did not include the disputed turnover in the assessment made upon the petitioners. It is for the first time that the Deputy Commissioner seeks to include that turnover and a fortiori a revising authority functioning under Rule 14-A is certainly not competent to do so. As already pointed out, the revising authority is not an 'assessing authority' and cannot make an assessment or re-assessment in respect of an escaped turnover. His duties are purely revisional, that is, they are confined only to revise an order already passed by the initial assessing authority. We are fortified in this conclusion by a judgment of a Division Bench of this Court consisting of Chandra Reddy, C.J., and Srinivasachari, J., in Manepalli Venkata Narayana v. State of Andhra Pradesh [1959] 10 S.T.C. 524. The learned Judges there were also considering the powers of a revisional authority vis-a-vis original assessing authority under Rule 31(5) framed under the powers vested in the Government under the Andhra Pradesh General Sales Tax Act (VI of 1957) which is almost analogous to Rule 14-A. In our opinion, therefore, Rule 14-A cannot justify the re-assessment made by the Deputy Commissioner in the present case.

21. For these reasons, we hold that the view taken by the Appellate Tribunal cannot be sustained. These revision cases are allowed and the (1) [1959] 10 S.T.C. 524. orders of assessment made by the Deputy Commissioner are set aside. The tax, if paid, shall be refunded to the petitioners. The petitioners will have their costs from the Government. Advocates' fee is fixed at Rs. 250 in each of the revision cases.


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