1. The petitioner is a dealer in ghee, butter and oil at Kangayam, Coimbatore District. He was assessed to sales tax for the year 1954-55 by the Deputy Commercial Tax Officer, Dharapuram, on 13th March, 1956. He claimed exemption for an amount of Rs. 3,67,427-5-0 representing that it was in respect of certain inter- State sales. This claim was upheld by the officer. The Commercial Tax Officer, Coimbatore (South), Erode, called for the records of assessment suo motu and examined the correctness and propriety of the exemption granted by the Deputy Commercial Tax Officer for the alleged inter-State sales. He refixed the net turnover of the dealer; but he subunstantially agreed with the assessment order of the 1st officer. He disallowed the exemption in respect of an item of sale amounting to Rs. 18-4-0, and thereby enhanced the tax by 30 nP. The order of the Commercial Tax Officer is dated 14th December, 1957. The Deputy Commercial Tax Officer gave effect to this order, and modified his previous assessment order on 19th December, 1957, in the light of the order of the revising authority. The Board of Revenue initiated further proceedings by way of revision Under Section 34 of the Madras General Sales Tax Act, 1959. This provision enables the Board to take proceedings suo motu in respect of proceedings and orders passed by the departmental officers. In the opinion of the Board, the Commercial Tax Officer had allowed exemption on the turnover of Rs. 3,67,409-1-0 under inter-State sales wrongly. The petitioner was called upon to sho cause why the exemption granted by the departmental officers should not be cancelled. The petitioner received the sho cause notice on the 14th December, 1961, appeared before the Board and prayed for time for the production of the account books relating to the business and also other records to justify the benefit of exemption obtained by him before the lower authorities. But the Board did not grant any time to the petitioner, and, by its order dated 18th December, 1961, overruled the contention of the petitioner. The Board observed that the petitioner failed to produce any documentary evidence in support of his contention that the exempted transaction relating to the disputed turnover had taken place entirely outside the State. The Board, therefore, directed the Deputy Commercial Tax Officer, Dharapuram, to determine the taxable turnover of the petitioner afresh, disallowing the exemption in respect of the inter-State sales. Aggrieved by this order, the petitioner has preferred this revision petition.
2. At the outset learned counsel for the petitioner contends that the Board was not competent to revise the order of the Commercial Tax Officer due to the bar of limitation enacted in Section 34 of the Act. As stated already, the order of the Commercial Tax Officer is dated 14th December, 1957, and the order of the Board is dated 18th December, 1961. According to the petitioner, the Board should have passed an order, if at all, only within 4 years from 14th December, 1957, and that the impugned order, having been admittedly passed beyond that period, is illegal and has to be set aside. The ground of limitation was raised even before the Board which, however, overruled it, observing thus :
As regards the contention of the dealer on the ground of limitation, it is seen that in his proceedings dated 19th December, 1957, in pursuance of suo motu revision order of the Commercial Tax Officer (sic) and the time limit of 4 years mentioned in Section 34 of the Madras General Sales Tax Act, 1959, has to be reckoned from 19th December, 1957, as the order of the suo motu revision passed by the Commercial Tax Officer merges with the order of the original assessment made by the assessing authority.
3. Reading this portion of the order of the Board as intelligibly as possible steering clear of the confusion caused by the mingling of several conceptions and ideas, it seems to us that the Board was of the opinion that the limitation of 4 years would commence from 19th December, 1957, the date on which the Deputy Commercial Tax Officer modified his previous assessment order in consequence of the order of the Commercial Tax Officer in revision. We are frankly unable to understand what the Board meant to convey by stating that there has been a merger of the order of the Commercial Tax Officer in that order of the Deputy Commercial Tax Officer. The words of Section 34 are, in our opinion, fairly clear as we shall presently show, and whichever interpretation is adopted, there is hardly any ground in support of the vie taken by the Board.
4. The short question which no arises is whether the Board, acting in exercise of its powers Under Section 34, was competent to pass the order 4 years beyond the date of the order which was in fact revised.
5. We have necessarily to refer to Section 34, which, in so far as it is material for the present purpose, reads:
(1) The Board of Revenue may, of its own motion, call for and examine an order passed or proceeding recorded by the appropriate authority...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.
(2) The Board of Revenue shall not pass any order Under Sub-section (1) if-
(c) more than four years have expired after the passing of the order.
(3) No order under this Section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard.
6. Now the crucial words are 'the Board of Revenue shall not pass any order if more than four years have expired after the passing of the order.' The only meaning which these words convey, quite certainly and unmistakably, is that no order of the appropriate authority mentioned in Section 34, Sub-section (1), is liable to be set aside, or modified or interfered with in any other manner, after the lapse of four years from the date of that order. The words 'passing of the order' have reference to the pronouncement and the date of the order. The words 'the Board of Revenue shall not pass any order Under Sub-section (1)' indicate that the expiry of the four year period of limitation invests the order of the appropriate authority with immunity from being altered, modified, or interfered with in any manner. In other words, the orders of the appropriate authority specified in Section 34, Sub-section (1), become indefeasibly final and beyond the purvie of the suo motu powers of the Board of Revenue on the completion of the period of limitation of four years. We must observe that, having regard to the specific terms of the Section, this conclusion is inescapable. The petitioner is, therefore, well founded in his contention that on 18th December, 1961, the Board's powers Under Section 34 to revise suo motu the order of the Commercial Tax Officer dated 14th December, 1957, had become extinct.
7. The learned Government Pleader appearing for the State, the respondent, relied strongly upon a decision of this Court, to which we were parties in Kadirvel Nadar v. State of Madras, T.C. No. 17 of 1959 (Since reported at : 46ITR251(Mad) ) which arose out of the Madras Agricultural Income-tax Act. It is pointed out that the terms of Section 34 of the Madras General Sales Tax Act are in pari materia with the provisions of Section 34 of the Madras Agricultural Income-tax Act, and that if the principle laid down by that decision is correct-and it is submitted that it is correct-the decision in this case should be against the petitioner. We shall no examine the soundness of this contention. In that case, an assessee assessed to agricultural income-tax preferred a revision petition to the Commissioner of Agricultural Income-tax (the Board of Revenue) Under Section 34 of that Act on 14th July, 1958, calling in question the order of the Assistant Commissioner of Agricultural Income-tax dated 15th July, 1957. The revision petition was dismissed by the Commissioner on 21st July, 1958, on the ground that it was timebarred; Section 34 of the Act, as it then stood, provided one year as the period of limitation for revision. Section 34 of that Act, so far as it is relevant for our purpose, may be set out:-
(1) The Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and subject to the provisions of this Act, may pass such orders thereon as he thinks fit:
Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard:
(2) the Commissioner shall not revise any order Under Sub-section (1) if-
(c) the order has been made more than three years previously.
8. There is certainly a difference in phraseology between Section 34 of that Act and Section 34 of the Madras General Sales Tax Act, 1959. The Agricultural Income-tax Act provides that the Commissioner shall not revise any order if that order had been made more than three years previously. The words in Section 34 of the General Sales Tax Act are 'the Board of Revenue shall not pass any order under Sub-section (1) if more than four years have expired after passing of the order.' It seems to us that, having regard to the scheme of the Madras Agricultural Income-tax Act and that of the Madras General Sales Tax Act, there is a notable difference between the word 'revise' used in the Agricultural Income-tax Act and the words 'pass any order' in the General Sales Tax Act. The word 'revise' is certainly of wide amplitude; and it does not denote only the actual passing of the order in revision. It includes the initiation of revision proceedings either by the exercise of suo motu powers of the Commissioner or at the instance of the assessee by an appropriate application. In what sense the word 'revise' has been used in the Agricultural Incometax Act would certainly depend upon the terms of that Section and the context in which the said expression occurs. We have pointed out in our decision in Kadirvel Nadar v. State of Madras, T.C. No. 17 of 1959 (Since reported at : 46ITR251(Mad) ) that Section 34 of the Agricultural Income-tax Act compendiously includes both suo motu powers of the Commissioner and the right of the assessee to invoke the Commissioner's jurisdiction by way of revision. We have pointed out the anomaly that would result if it were to be held that the revising authority became functus officio after the lapse of the period; that is to say, the assessee's application preferred in time would be easily defeated by mere inaction on the part of the revising authority. In our opinion, such a result would not merely be anomalous but would really be calculated to prejudice the assessee's rights quite unjustly. After comparing Section 34 of the Act with the provisions of the Indian Income-tax Act we observed as follows:-
But the provisions of the Agricultural Income-tax Act do not make a distinction between cases where the Commissioner exercises his powers suo motu and cases where he exercises such powers on the application of the assessee. We are of opinion that Section 34 of the Agricultural Income-tax Act has fixed the period of one year, only as a period of limitation which applies both to the Commissioner as well as to the assessee. So long as the proceedings have commenced within the period fixed, the power of the Commissioner can be exercised at any time thereafter, and it is not necessary that the power should be exercised within the period fixed. The right of the assessee to obtain relief by applying for revision should not depend on the hazard of the revising authority disposing of the matter within a particular period and cannot be defeated by the failure of the authority to discharge the statutory functions.
9. Turning no to the scheme of the Madras General Sales Tax Act, 1959, it is quite clear that the powers of revision either by the Deputy Commissioner Under Sections 32 and 33 or of the Board of Revenue Under Sections 34 and 35 fall into two categories. One is suo motu powers of the revising authority, and the other is the power which can be exercised at the instance of the aggrieved assessee. Section 34 is the provision relating to the suo motu powers of the Board of Revenue. We have already extracted that provision. Section 35 enables the assessee to approach the Board of Revenue for the exercise of its revisional jurisdiction. A comparison of that provision with Section 34 will be quite useful in determining the true meaning of Section 34. Section 35, in so far as it is material, runs as follows :-
(1) Any person objecting to an order passed by the Deputy Commissioner under Sub-section (3) of Section 33, may within a period of 30 days from the date on which a copy of the order was served on him in the manner prescribed, file an application for revision of such order to the Board of Revenue :
Provided that the Board of Revenue may admit an application presented after the expiry of the said period if it is satisfied that the applicant had sufficient cause for not presenting the application within the said period.
10. The assessee seeking the revisional aid of the Board Under Section 35 is obliged to file an application within the period of 30 days from the date on which a copy of the order sought to be revised was served upon him. The Board has, of course, powers to condone the delay in presenting the application. But once the application is filed, there is no limitation as to the time before which the Board should pass an order disposing of the revision petition. The contrast between Section 34 and Section 35 is wellmarked and significant. The Board cannot, in the exercise of its suo motu powers, pass an order beyond 4 years after the order of the appropriate authority ; but the Board can pass an order in revision at the instance of the assessee at any time provided he had come before the Board within the period of limitation or within such period as the Board permitted him to file the revision petition. It seems to us that the Legislature clearly made a distinction between these two categories of revisional powers of the Board and used appropriate language to point out that the orders of the department should become final (if the assessee did not call them in question) after the period of 4 years from the date of the order.
11. The provisions of the Indian Income-tax Act (Sections 33A and 33B) are also of the same pattern as those in the Madras General Sales Tax Act. It is not necessary to set out those provisions herein. It is enough to observe that, in a case where the Commissioner of Income- tax calls for the record on his own motion Under Section 33A, he is bound to make an order within one year from the date of the order passed by the subordinate authority. But in a case where an application is filed by the assessee before the Commissioner, the assessee should file it within one year from the date of order, and the Commissioner would be entitled to pass an order on that application even beyond the period of one year. Section 33B which provides for the Commissioner's powers of revision against the order passed by the Income-tax Officer is also similar to the provisions of Section 33A.
12. We do not think that the decision in Kadirvel Nadar v. State of Madras, T.C. No. 17 of 1959*, lends any assistance to the learned Government Pleader in contending that the Board has powers in the instant case to pass the order beyond 4 years from the order of the Commercial Tax Officer. The language of Section 34 is express, explicit and mandatory, and it is quite clear that the instant order of the Board offends the provisions of Section 34 of the Act.
13. In the result the appeal is allowed. The order of the Board of Revenue is set aside. The petitioner will get his costs from the respondent. Counsel's fee Rs. 100.