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Deputy Commissioner of Agricultural Income-tax and Sales Tax Vs. K.P. Krishnan - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberW.A. Nos. 45, 46, 48 and 49 of 1962 from O.P. Nos. 1424, 1425, 1430 and 1431 of 1960
Judge
Reported in[1963]14STC874(Ker)
AppellantDeputy Commissioner of Agricultural Income-tax and Sales Tax
RespondentK.P. Krishnan
Appellant AdvocateGovernment Pleader
Respondent Advocate P. Subramonian Potti and; S.A. Nagendran, Advs.
Cases ReferredOfficer v. Bombay Dyeing
Excerpt:
- - when an assessing officer overlooked certain aspects from the case or failed to give due weight to the circumstances arising from the case and when it came to the notice of the revising authority that these factors have not been given due weight at the time of assessment, the revisional authority could examine them and pass such orders as he thinks fit......jurisdiction in passing the orders in question.2. it is the case of the writ petitioners that the deputy commissioner had no jurisdiction because the necessary notification empowering him to act under section 12 of the madras general sales tax act had not been made. this contention was accepted by the learned judge who heard the writ applications and he, therefore, quashed the orders passed by the deputy commissioner. the state has appealed from those orders. in view of act xiv of 1962 which amended the general sales tax act, 1125 (which is the act with which we are now concerned) conferring retrospective jurisdiction on the revisional authority and in view of our decision in t.r.c. no. 25 of 1962 printed at page 877 infra., the ground on which the learned judge quashed the orders of.....
Judgment:

P. Govindan Nair, J.

1. These appeals raise a common question as to whether the Deputy Commissioner had jurisdiction to revise the orders of assessments, four in number, passed by the assessing authority and if he had jurisdiction, he had acted in excess of his jurisdiction in passing the orders in question.

2. It is the case of the writ petitioners that the Deputy Commissioner had no jurisdiction because the necessary notification empowering him to act Under Section 12 of the Madras General Sales Tax Act had not been made. This contention was accepted by the learned Judge who heard the writ applications and he, therefore, quashed the orders passed by the Deputy Commissioner. The State has appealed from those orders. In view of Act XIV of 1962 which amended the General Sales Tax Act, 1125 (which is the Act with which we are now concerned) conferring retrospective jurisdiction on the revisional authority and in view of our decision in T.R.C. No. 25 of 1962 Printed at page 877 infra., the ground on which the learned Judge quashed the orders of the revisional authority, the Deputy Commissioner, cannot now stand.

3. We have, therefore, to consider the writ applications on the other grounds mentioned therein. The main ground urged in the writ applications is that the revisional authority can pass an order only with reference to the material and the records of assessment. This is the proposition which has been laid down by this Court in M. Appukutty v. State of Kerala [1958] 9 S.T.C. 710 and the Supreme Court has approved this decision in this respect in the decision in State of Kerala v. M. Appukutty (1963) I K.L.R. 210. Their Lordships said :

In exercising revisional jurisdiction the Deputy Commissioner would be restricted to the examination of the record for determining whether the order of assessment was according to law.

4. It is not contended by the State that the Deputy Commissioner purported to act under Rule 17. In fact, he could not have acted under Rule 17, more than three years having elapsed from the respective years of assessment.

5. It is contended by the respondents in these appeals that the reason why the revisional authority acted as he did was on account of a pronouncement of the Sales Tax Appellate Tribunal holding that some of the wholesale merchants in the Palghat area are mere commission agents. This, it is said, was sometime in 1960 and the orders passed by the revisional authority were in September, 1960. Exhibit P-4 in these writ applications are the orders passed by the revisional authority. In paragraph 5 of the affidavit of the respondents filed in support of the writ applications in this Court, it is averred that the reason for the revisional orders is the order passed by the Sales Tax Appellate Tribunal that the wholesale merchants in Palghat are mere commission agents. There has been no counter-affidavit filed on behalf of the State.

6. This is what is stated in the notice, exhibit P-2, issued by the revisional authority.

It is seen that purchases of tobacco are from dealers exempted from payment of tax.

From where this fact that the purchases were made by the assessees from dealers exempted from payment of tax is not made known to us. The assessees filed detailed objections and they contended that there is no material for reopening the assessments' and the answer to that is contained in exhibit P-4 order and it is in these terms :

The third contention raised is that the revising authority Under Section 12 is permitted only to call for and examine the record of any order passed or proceedings recorded under the provisions of the Act. In this case the assessing authority allowed exemption without properly examining the liability of the dealer to pay first point tax. When an assessing officer overlooked certain aspects from the case or failed to give due weight to the circumstances arising from the case and when it came to the notice of the revising authority that these factors have not been given due weight at the time of assessment, the revisional authority could examine them and pass such orders as he thinks fit. There is nothing irregular in the proposed action.

And in the subsequent paragraph there is a single sentence:

As the dealer is found to be the first purchaser he is liable to pay tax on the first purchase point.

These are the only remarks which can be said to be connected with the contentions raised by the assessees. Actually the point raised, viz., that the revisional authority should not go beyond the records of assessment, has not been met in the order, exhibit P-4. An assertion has been made in the order that the assessees are found to be the first purchasers and are liable to pay tax. There is no material in the records of assessment to support this assertion. The assessing authority in passing the original order of assessment stated thus:

There has been no purchase from outside the State.

It is clear, therefore, that the assessing authority proceeded on the basis that the persons from whom the assessees purchased raw tobacco are dealers inside the State who must have purchased these articles.

7. In these circumstances, we think that what prompted the revisional authority to revise the orders of assessment was the decision of the Sales Tax Appellate Tribunal that the wholesale dealers in the District of Palghat are mostly commission agents. This is not a fact or a material available in the records of assessment and we are of the view that the revisional authority erred in relying on this material for reopening the assessments that have been made nearly four years before the orders of the revisional authority were passed.

8. We also feel that the question whether the persons who sold to the assessees were commission agents or not must be decided with reference to the transactions of a particular assessee and the person from whom he purchased and it is not correct or just to presume that all persons in Palghat who sold raw tobacco to the assessees are commission agents.

9. These appeals have, therefore, to be dismissed even though the ground on which the writ applications were allowed cannot now stand. We accordingly dismiss these appeals and direct the appellants to pay the costs of the respondents in these appeals. We consolidate the Advocates' fee and provide that Rs. 250 in all will be paid by the appellants.

Tax Revision Case No. 25 of 1962.

The judgment of the High Court of Kerala in Tax Revision Case No. 25 of 1962 (Deputy Commissioner of Agricultural Income-tax and Sales Tax, North Zone, Kozhikode v. K.N. Abubacker & Sons) was delivered on 29th November, 1962, by a Division Bench consisting of M. S. Menon, C.J., and P. Govindan Nair, J. The judgment of the Court was delivered by Govindan Nair, J., and it runs as follows :-

Govindan Nair, J.

10. We entertain no doubt that this tax revision case has to be allowed. The Sales Tax Appellate Tribunal by order dated 26th March, 1961, set aside an order passed by the Deputy Commissioner of Agricultural Income-tax and Sales Tax, North Zone, Kozhikode, in purported exercise of the revisional powers Under Section 12 of the Madras General Sales Tax Act. The ground of the decision was that there has been no notification empowering the Deputy Commissioner to act Under Section 12. This Court in O. P. Nos. 1424, 1425 and 1431 of 1960 held that in the absence of such a notification, the Deputy Commissioner has no jurisdiction to act under Section 12 of the Madras General Sales Tax Act. Since the order was passed by the Tribunal, the General Sales Tax Act, 1125 (Act XI of 1125) was amended by Act XVI of 1962, and a proviso to Section 27(2) of the principal Act reading

Provided that the officers and authorities appointed under this Act shall be competent to exercise on and after the 1st day of October, 1957, the same powers as were exercisable before the said date by the corresponding officers and authorities appointed under the aforesaid Acts, in respect of all matters arising under the aforesaid Acts ; and, if any question arises as to who such corresponding officers and authorities are, the decision of the Government thereon shall be final

was added by Section 2 of the Amending Act. And Sub-section (2) of Section 1 of the Amending Act enacted that Section 2 of the Amending Act shall be deemed to have come into force on 1st October, 1957. It is, therefore, clear that the authority, the Deputy Commissioner, must be deemed to have had jurisdiction when he passed the order. This is the principle that has been laid down by the Supreme Court in Venkata-chalam, Income-tax Officer v. Bombay Dyeing & . A.I.R. 1958 S.C. 875;. Following this decision, we set aside the order of the Tribunal and allow this revision case. Several points were raised by the assessee before the Tribunal. These were not considered by the Tribunal in the view it took about the lack of jurisdiction of the Deputy Commissioner. The Tribunal will have to consider these grounds now that we have held that the Deputy Commissioner had jurisdiction. The Tribunal will, therefore, take back Appeal No. 730 of 1961 on its file and deal with the appeal on the merits.

12. There will be no order as to costs in this tax revision case.


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