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Madras Rubber Factory Limited Vs. the State of Tamil Nadu - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 812 of 1976 (Appeal No. 42 of 1976)
Judge
Reported in[1978]41STC55(Mad)
AppellantMadras Rubber Factory Limited
RespondentThe State of Tamil Nadu
Appellant AdvocateC. Natarajan, Adv.
Respondent AdvocateAdditional Government Pleader
DispositionAppeal allowed
Cases ReferredT.M.L. Alagappa Chettiar v. State of Madras
Excerpt:
- - 4. even assuming that the order of the joint commercial tax officer dated 22nd september, 1971, is an order, which will come within the scope of section 34 of the act, we are clearly of the opinion that the said order could not have been revised by the board in exercise of its powers under section 34 of the act......powers of revision under section 34 of the act. the matter lies within a very narrow compass. the joint commercial tax officer, mount road iii, assessed the appellants by an order dated 26th december, 1969. this order of the joint commercial tax officer was revised by the deputy commissioner, commercial taxes, in exercise of his powers under section 32 of the act on 14th september, 1971. the order of the deputy commissioner was given effect to by the joint commercial tax officer, mount road iii, by proceedings dated 22nd september, 1971. the board of revenue (commercial taxes), madras, by notice dated 31st august, 1976, called upon the appellants to show cause why the order of the joint commercial tax officer, mount road iii, dated 22nd september, 1971, should not be revised. the.....
Judgment:

Ismail, J.

1. This is an appeal under Section 37 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as the Act), against the order of the Board of Revenue (Commercial Taxes), Madras, dated 21st September, 1976, passed in exercise of suo motu powers of revision under Section 34 of the Act. The matter lies within a very narrow compass. The Joint Commercial Tax Officer, Mount Road III, assessed the appellants by an order dated 26th December, 1969. This order of the Joint Commercial Tax Officer was revised by the Deputy Commissioner, Commercial Taxes, in exercise of his powers under Section 32 of the Act on 14th September, 1971. The order of the Deputy Commissioner was given effect to by the Joint Commercial Tax Officer, Mount Road III, by proceedings dated 22nd September, 1971. The Board of Revenue (Commercial Taxes), Madras, by notice dated 31st August, 1976, called upon the appellants to show cause why the order of the Joint Commercial Tax Officer, Mount Road III, dated 22nd September, 1971, should not be revised. The appellants offered their explanation putting forward several contentions objecting to the jurisdiction of the Board of Revenue to revise the order referred to above. Overruling the objections, the Board of Revenue by its impugned order dated 21st September, 1976, revised the order dated 22nd September, 1971, by modifying the order of the Joint Commercial Tax Officer, Mount Road III. It is against this order of the Board of Revenue that the present appeal has been preferred by the assessee.

2. We are of the opinion that the appeal has to be allowed since the Board of Revenue has no jurisdiction to pass the impugned order. It is not in dispute that the power that is exercised by the Board is under Section 34 of the Act. That Section enumerates the orders which alone could be revised by the Board of Revenue in exercise of its suo motu powers of revision under Section 34 of the Act. Section 34(1) of the Act states :

The Board of Revenue may, of its own motion, call for and examine an order passed or proceeding recorded by the appropriate authority under Section 4-A, Section 12, Section 14, Section 15 or Sub-section (1) or (2) of Section 16 or an order passed by the Appellate Assistant Commissioner under Sub-section (3) of Section 31 or by the Deputy Commissioner under Sub-section (1) of Section 32 and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act may pass such order thereon as it thinks fit.

3. Thus, this Sub-section enumerates the orders which could be the subject-matter of revision by the Board of Revenue and the consequential order passed by the Joint Commercial Tax Officer, Mount Road III, on 22nd September, 1971, by way of implementing the order of the Deputy Commissioner dated 14th September, 1971, is not one of the orders which could be revised under Section 34 of the Act. As a matter of fact, the order dated 22nd September, 1971, of the Joint Commercial Tax Officer is not one passed under any of the provisions of the Act, but is passed under Rule 32(2) of the Tamil Nadu General Sales Tax Rules, 1959, by way of implementing or giving effect to the decision of the Deputy Commissioner rendered under Section 32 of the Act on 14th September, 1971. Consequently, it is clear that the Board of Revenue had no jurisdiction to revise the order dated 22nd September, 1971, of the Joint Commercial Tax Officer.

4. Even assuming that the order of the Joint Commercial Tax Officer dated 22nd September, 1971, is an order, which will come within the scope of Section 34 of the Act, we are clearly of the opinion that the said order could not have been revised by the Board in exercise of its powers under Section 34 of the Act. As we have pointed out already, the order dated 22nd September, 1971, passed by the Joint Commercial Tax Officer was merely a consequential order implementing or giving effect to the decision of the Deputy Commissioner. In this case, the Deputy Commissioner exercised powers under Section 32 of the Act at the instance of the assessees who claimed exemption for Rs. 64,989.60 in respect of the sales of transmission beltings, which exemption the Deputy Commissioner allowed. What the Board of Revenue thought to be an error which it claimed to rectify was the one found in the original order of the Joint Commercial Tax Officer dated 26th December, 1969 and not any error perpetrated by or crept into the order of the Deputy Commissioner dated 14th September, 1971. Therefore, in the guise of revising the order dated 22nd September, 1971, of the Joint Commercial Tax Officer, the Board of Revenue cannot revise the order of the Joint Commercial Tax Officer dated 26th December, 1969, since the period of five years for the exercise of the powers of revision had already expired. However, the Board erroneously assumed that the Joint Commercial Tax Officer, while giving effect to the order of the Deputy Commissioner dated 14th September, 1971, had the right to and he was bound to, rectify the error which the Joint Commercial Tax Officer was alleged to have committed in the original order dated 26th December, 1969. The original order dated 26th December, 1969, is a statutory order, subject to appeal and revision and if the remedies provided in the Act with reference to that order had not been pursued' within the time prescribed by the law, certainly it was not open to the Board of Revenue to take advantage of the subsequent consequential order of the Joint Commercial Tax Officer dated 22nd September, 1971, for the purpose of interfering with the order of the Joint Commercial Tax Officer dated 26th December, 1969. It is not in dispute that the period of limitation available for the Board of Revenue to interfere with the orders mentioned in Section 34(1) of the Act is five years. In this case, the Board passed its order on 21st September, 1976 and that order is beyond the period of five years from 26th December, 1969, the date of the original order of the Joint Commercial Tax Officer and also beyond the period of five years even from 14th September, 1971, the date of the order of the Deputy Commissioner, even assuming that it was that order, in substance, which was sought to be revised by the Board of Revenue in this particular case.

5. The principles laid down by this court in P.S.N.S. Ambalavana Chettiar & Co. Private Limited v. Commissioner of Commercial Taxes, Board of Revenue, Madras-5 [1963] 14 S.T.C. 760 and in T.M.L. Alagappa Chettiar v. State of Madras [1963] 14 S.T.C. 839 respectively will apply to the facts of this case also.

6. Accordingly, the tax appeal is allowed and the order of the Board of Revenue dated 21st September, 1976, is set aside. The appellants are entitled to their costs. Counsel's fee Rs. 250 (two hundred and fifty only).


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