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The Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Vs. P.K. Chellappan Achari - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. No. 18 of 1979
Judge
Reported in[1980]45STC236(Ker)
AppellantThe Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes)
RespondentP.K. Chellappan Achari
Appellant AdvocateThe Government Pleader
Respondent AdvocateT.L. Viswanatha Iyer; and P.S. Narayanan, Advs.
DispositionPetition dismissed
Excerpt:
- - one of the points agitated before the tribunal was whether the assessment which was made on best of judgment could be supported with respect to the percentage of addition directed to be made to the turnover by the sales tax officer. provided that the appellate tribunal may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period. we are not satisfied that the tribunal exceeded its jurisdiction or misdirected itself in allowing the question regarding the rate of tax to be raised before it and in accepting the case of the assessee on this aspect......28 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the appellate tribunal:provided that the appellate tribunal may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period.(2) the officer authorised under sub-section (1) or the person against whom an appeal has been preferred, as the case may be, on receipt of notice that an appeal against the order of the appellate assistant commissioner has been preferred under sub-section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file, within thirty days of the receipt of.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. The revenue has preferred this revision against the decision of the Sales Tax Appellate Tribunal, Trivandrum. The assessee was a dealer in jewellery and coffee powder at Pandalam. The assessment year with which we are concerned is 1972-73. In respect of jewellery purchased by him and converted into gold, the question arose whether the turnover from it was liable to be assessed under item 56 of the First Schedule of the Sales Tax Act at the rate of 1 per cent or at the rate sanctioned by Section 5 of the Act, viz., 3 per cent (it was actually 31/2 per cent at the relevant time). On this question, the Sales Tax Officer and the Appellate Assistant Commissioner concurred in holding that the assessee was liable to be assessed Under Section 5 at 31/2 per cent. There was a further appeal by the assessee to the Sales Tax Appellate Tribunal. One of the points agitated before the Tribunal was whether the assessment which was made on best of judgment could be supported with respect to the percentage of addition directed to be made to the turnover by the Sales Tax Officer. The Sales Tax Officer had added 100 per cent of the purchase turnover, which the Appellate Assistant Commissioner reduced to 75 per cent. This was the subject-matter of the appeal before the Sales Tax Appellate Tribunal. On this point, the Tribunal concurred with the Appellate Assistant Commissioner.

2. Before the Tribunal, the assessee filed a petition seeking permission to raise an additional ground in regard to the rate of levy of the tax Under Section 5A of the Act. That section reads:

5A. Levy of purchase tax. -- (1) Every dealer who in the course of his business purchases from a registered dealer or from any other person any goods, the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable Under Section 5, and either --

(a) consumes such goods in the manufacture of other goods for sale or otherwise; or

(b) disposes of such goods in any manner other than by way of sale in the State; or

(c) despatches them to any place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce shall, whatever be the quantum of the turnover relating to such purchase for a year, pay tax on the taxable turnover relating to such purchase for that year at the rates mentioned in Section 5.

It was the contention of the assessee that by reason of the operation of Section 5A, he is entitled to be assessed Under Section 5(2) of the Act. We may extract Section 5(2):

5. Levy of tax on sale or purchase of goods. -- (1)....

(2) Every dealer other than a dealer referred to in Sub-section (1) whose total turnover for a year in respect of the goods specified in the First or Second Schedule is not less than ten thousand rupees shall pay tax at the rate and only at the point specified against the goods in the First or Second Schedule, as the case may be, on his taxable turnover in that year relating to such godds:

Provided that where a tax has been levied under Sub-section (1) or Subsection (2) of this section or Under Section 5A in respect of the sale or purchase of goods specified in the Second Schedule and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be prescribed.

The Tribunal allowed the appellant's application to raise additional ground in regard to the rate of levy Under Section 5A of the Act. Dealing with the ground thus raised, the Tribunal was of the view that the gold in question has to be treated the same as 'bullion and specie' under entry 56 of the First Schedule of the Act and assessed at the same rate of tax, as was applicable to bullion and specie under the said entry, namely, 1 per cent.

3. The learned Government Pleader on behalf of the revision-petitioner objected to the Tribunal having allowed the assessee at the stage of the second appeal to raise for the first time the point regarding the rate of tax Under Section 5A read with Section 5(2) of the Act. It was argued that this was outside the scope of the appellate powers of the Tribunal Under Section 39 of the Act. We may extract Section 39.

39. Appeal to the Appellate Tribunal. -- (1) Any officer empowered by the Government in this behalf or any other person objecting to an order passed by the Appellate Assistant Commissioner under Sub-section (3) of Section 34 and any person objecting to an order passed by the Deputy Commissioner under Sub-section (1) of Section 35, and any person objecting to an order passed by the Inspecting Assistant Commissioner under Clause (c) of Sub-section (4) of Section 28 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Tribunal:

Provided that the Appellate Tribunal may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period.

(2) The officer authorised under Sub-section (1) or the person against whom an appeal has been preferred, as the case may be, on receipt of notice that an appeal against the order of the Appellate Assistant Commissioner has been preferred under Sub-section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Appellate Assistant Commissioner, and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in Sub-section (1).

(3) The appeal or the memorandum of cross-objections shall be in the prescribed form and shall be verified in the prescribed manner, and in the case of an appeal preferred by any person other than an officer empowered by the Government under Sub-section (1), it shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed.

(4) In disposing of an appeal, the Appellate Tribunal may, after giving the parties a reasonable opportunity of being heard either in person or by a representative, --

(a) in the case of an order of assessment or penalty, --

(i) confirm, reduce, enhance or annul the assessment or penalty or both;

(ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further enquiry as may be directed; or

(iii) pass such other orders as it may think fit; or

(b) in the case of any other order, confirm, cancel or vary such order:

Provided that, if the appeal involves a question of law on which the Appellate Tribunal has previously given its decision in another appeal and either a revision petition in the High Court against such decision or an appeal in the Supreme Court against the order of the High Court thereon is pending, the Appellate Tribunal may defer the hearing of the appeal before it, till such revision petition in the High Court or the appeal in the Supreme Court is disposed of.

(5) Where as a result of the appeal any change becomes necessary in the order appealed against, the Appellate Tribunal may authorise the assessing authority to amend such order accordingly and on such amendment being made any amount overpaid by the appellant shall be refunded to him or the further amount of tax, if any, due from him shall be collected in accordance with the provisions of this Act.

(6) Notwithstanding that an appeal has been preferred under Sub-section (1), the tax shall be paid in accordance with the order of assessment against which the appeal has been preferred:

Provided that the Appellate Tribunal may, in its discretion, give such directions as it thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed.

(7) (a) The appellant or the respondent may apply for review of any order passed by the Appellate Tribunal under Sub-section (4) on the basis of the discovery of new and important facts which after the exercise of due diligence were not within his knowledge or could not be produced by him when the order was made:

Provided that no such application shall be preferred more than once in respect of the same order.

(b) The application for review shall be preferred in the prescribed manner and within one year from the date on which a copy of the order to which the application relates was served on the applicant in the manner prescribed, and, where the application is preferred by any person other than an officer empowered by the Government under Sub-section (1), it shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed.

(8) Every order passed by the Appellate Tribunal under Sub-section (4) or Sub-section (7) shall be communicated in the manner prescribed to the appellant, the respondent, the authority from whose order the appeal was preferred, the Deputy Commissioner concerned, if he is not such authority, and the Board of Revenue.

The grounds of objection on which the appeal can be preferred are stated in Sub-section (1) of the section. The powers of the Appellate Tribunal in disposing of the appeal are provided in Sub-section (4). Both are quite wide and comprehensive.

Especially so, is the provision in Sub-section (4)(a)(iii) of Section 39, which entitles the Tribunal to pass 'such orders as it may think fit'. We think in the circumstances that the Tribunal was justified in allowing the applicant to raise the ground regarding the rate of levy and in sustaining the argument of the counsel for the assessee.

Our attention was called to the forms prescribed under the Act for appeal to the Appellate Assistant Commissioner and for appeal to the Tribunal. We have perused the same. We do not think these in anyway affect the amplitude of the provisions regarding the scope of the appeal and the power of the Tribunal in dealing with the appeal. We are not satisfied that the Tribunal exceeded its jurisdiction or misdirected itself in allowing the question regarding the rate of tax to be raised before it and in accepting the case of the assessee on this aspect. We dismiss this revision with no order as to costs.


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