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The Appellate Assistant Commissioner of Commercial Taxes and anr. Vs. N. Kuppanna Gounder - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Appeal No. 88 of 1973
Judge
Reported in[1975]35STC170(Mad)
AppellantThe Appellate Assistant Commissioner of Commercial Taxes and anr.
RespondentN. Kuppanna Gounder
Appellant Advocate K. Venkataswami, Additional Government Pleader (Tax)
Respondent Advocate K.C. Rajappa, Adv.
Cases ReferredMadras Auto Service Private Ltd. v. Joint Commercial Tax Officer
Excerpt:
- - where, therefore, ex facie the record or order an error is evident with reference to such declaration of ambit and effect of the statutory provision, it may well fall within the purview of section 55. but where the law as declared will in its application depend on facts and those facts will have to be presented by the assessee, then the error will be on the part of assessee, if he has not placed them before the authorities at the time the assessment order was made......sales tax act, 1959, to its facts. the assessment was on 14th october, 1967. purchases of raw hides and skins in the state during the assessment year were brought to tax. there was an appeal which was dismissed on 20th december, 1967. on 18th april, 1969, was the decision in sadak thamby & co. v. appellate assistant commissioner of commercial taxes [1969] 24 s.t.c. 468, which held that, where during an year of assessment dressed hides and skins were sold and such hides and skins came out of raw hides and skins which had suffered tax, the concessional rate of 1| per cent should be applied at the point of first sale in the state of such dressed hides and skins. when the law was so declared, it had its effect not merely from the date of the decision but also from the inception of the.....
Judgment:

Veeraswami, C.J.

1. This writ appeal involves a problem of application of Section 55(1) of the Madras General Sales Tax Act, 1959, to its facts. The assessment was on 14th October, 1967. Purchases of raw hides and skins in the State during the assessment year were brought to tax. There was an appeal which was dismissed on 20th December, 1967. On 18th April, 1969, was the decision in Sadak Thamby & Co. v. Appellate Assistant Commissioner of Commercial Taxes [1969] 24 S.T.C. 468, which held that, where during an year of assessment dressed hides and skins were sold and such hides and skins came out of raw hides and skins which had suffered tax, the concessional rate of 1| per cent should be applied at the point of first sale in the State of such dressed hides and skins. When the law was so declared, it had its effect not merely from the date of the decision but also from the inception of the statutory provision. Subsequent to Sadak Thamby & Co. v. Appellate Assistant Commissioner of Commercial Taxes [1969] 24 S.T.C. 468, the respondent applied under Section 55 for rectifying the error in the assessment order. That was refused. But a petition under Article 226 of the Constitution was successful.

2. In our opinion, the order under appeal cannot be sustained. The question in this case is not whether where a law has been declared to be such and such by a decision, it could be applied to a state of affairs which had become concluded by the decision. When a statutory provision is interpeted as to its precise ambit and effect, it will have effect right from the inception of the statutory provision, as we mentioned earlier. Where, therefore, ex facie the record or order an error is evident with reference to such declaration of ambit and effect of the statutory provision, it may well fall within the purview of Section 55. But where the law as declared will in its application depend on facts and those facts will have to be presented by the assessee, then the error will be on the part of assessee, if he has not placed them before the authorities at the time the assessment order was made. To put it differently, while at the time the assessment order was made the sales turnover would be chargeable to tax at the concessional rate if such turnover came out of raw hides and skins which had suffered tax, and the assessee had not claimed the concessional rate by placing the necessary facts, such omission will not be an error within the meaning of Section 55. Madras Auto Service Private Ltd. v. Joint Commercial Tax Officer [1969] 23 S.T.C. 111 relied on for the assessee-respondent dealt with a different situation. That was a case where no subsequent decision was involved and there was an error apparent on the face of the record, inasmuch as the facts before the authorities were not duly appreciated. If the facts had been looked into in that case carefully, it would have emerged that the sales charged to tax were second sales not subject to tax. In the instant case, the error was not on the scope of the law vis-a-vis entries 7(a) and (b) in Schedule II of the Act; but the error lay on the assessee not placing the necessary facts and establishing that he was entitled to the charge only at the concessional rate under entry 7(b). On that view the appeal is allowed. No costs.


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