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Raj Brothers Agencies Vs. the Board of Revenue - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Petition Nos. 4629 and 4630 of 1965
Judge
Reported in[1973]30STC410(Mad)
AppellantRaj Brothers Agencies
RespondentThe Board of Revenue
Appellant Advocate C.S. Chandrasekhara Sastry, Adv.
Respondent Advocate K. Venkataswami, Assistant Government Pleader
DispositionPetition allowed
Cases ReferredErode Yarn Stores v. State of Madras
Excerpt:
- - 3. we are of the view that the petitions are well-founded. in a matter like that it is the substance of the power, not the form of it, that has to be regarded. there, it was clearly held by this court that an appeal contemplated by section 34(2)(b) is an effective appeal, and not one which was rejected or refused to be entertained on the ground of limitation......well-founded. if the board of revenue meant by its order that because section 34 provides for suo motu power and therefore no party however aggrieved could move the board to exercise that power, it would be a wrong view to take. the proper approach would be that once the board is invested with the power to revise an order made by its subordinate, notwithstanding that the power is described as a suo motu power, an assessee who is aggrieved by such an order would be entitled to bring it to the notice of the board in order that it may invoke its powers. in a matter like that it is the substance of the power, not the form of it, that has to be regarded. if, on the other hand, the board in dismissing the petitions had in mind section 34(2)(b), erode yarn stores v. state of madras [1963] 14......
Judgment:
ORDER

Veeraswami, J.

1. Against the orders of the Appellate Assistant Commissioner the petitioners had filed an appeal to the Tribunal, but belatedly. The Tribunal declined to condone the delay and made an order that in view of it the appeal could not be entertained. Thereafter the petitioners moved the Board of Revenue under Section 34(1) of the Madras General Sales Tax Act. The Board, however, rejected the petition on the ground :

The petitioners have no legal jurisdiction to move the Board for exercise of its powers of suo motu revision under Section 34. The two petitions are therefore rejected in limine.

2. These petitions are for mandamus directing the Board of Revenue to dispose of the petitioners' application under Section 34 in accordance with law.

3. We are of the view that the petitions are well-founded. If the Board of Revenue meant by its order that because Section 34 provides for suo motu power and therefore no party however aggrieved could move the Board to exercise that power, it would be a wrong view to take. The proper approach would be that once the Board is invested with the power to revise an order made by its subordinate, notwithstanding that the power is described as a suo motu power, an assessee who is aggrieved by such an order would be entitled to bring it to the notice of the Board in order that it may invoke its powers. In a matter like that it is the substance of the power, not the form of it, that has to be regarded. If, on the other hand, the Board in dismissing the petitions had in mind Section 34(2)(b), Erode Yarn Stores v. State of Madras [1963] 14. S.T.C. 724 provides the answer. There, it was clearly held by this court that an appeal contemplated by Section 34(2)(b) is an effective appeal, and not one which was rejected or refused to be entertained on the ground of limitation. The learned Judges in that case held that even in such circumstances the order dismissing the appeal or declining to entertain the appeal would not be a case where the order had been made the subject of an appeal to the Appellate Tribunal within the meaning of Section 34(2)(b). With respect, we agree with that view.

4. These petitions are allowed and the Board is directed to dispose of the petitions under Section 34(1) afresh in accordance with law. No costs.


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