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Thiruvalar Spinning Mills Vs. the Board of Revenue (Commercial Taxes) and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Petition No. 2161 of 1969
Judge
Reported in[1972]29STC459(Mad)
AppellantThiruvalar Spinning Mills
RespondentThe Board of Revenue (Commercial Taxes) and anr.
Appellant Advocate K. Srinivasan and ; K.C. Rajappa, Advs.
Respondent Advocate K. Venkataswami, First Assistant Government Pleader
Disposition Petition dismissed
Cases ReferredK. Ambujammal v. Deputy Commercial Tax Officer
Excerpt:
.....the assessable turnover at all, then the second respondent was bound to rectify the mistake in the original assessment order, notwithstanding the fact that it was a best judgment assessment. in a case where the assessing authority has to fix the turnover under the sales tax laws by exercising his best of judgment and rejects the books of account and the returns filed by the assessee, then it cannot be said that it is easily susceptible to rectification under section 55 of the act, because what was done by the assessing authority was to the best of his judgment, and not on any data furnished by the assessee. if, however, cogent material is placed by the aggrieved person before such authority and he calls upon such authority to revise the order (may be one passed under the best judgment..........facts may be stated as follows :2. the petitioner, whose returns and accounts were rejected by the deputy commercial tax officer, karur, the second respondent, was assessed under the best judgment method under the madras general sales tax act for the year 1964-65. the order of assessment is dated 29th january, 1966. aggrieved against the said order, which was apparently made not after a scrutiny of the accounts, the petitioner filed an appeal and obtained relief in part. the appellate assistant commissioner's order is dated 10th august, 1966, and it has become final. after the disposal of the appeal, the petitioner filed a petition dated 9th november, 1966, before the second respondent claiming that a turnover of rs. 4,73,732.31 ought not to have been included in the original assessment.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. This is a petition for the issue of a writ of mandamus directing the second respondent to entertain the application for rectification made by the petitioner within time and cause a reappraisal of his liability to tax and for such other directions as are necessary. The facts may be stated as follows :

2. The petitioner, whose returns and accounts were rejected by the Deputy Commercial Tax Officer, Karur, the second respondent, was assessed under the best judgment method under the Madras General Sales Tax Act for the year 1964-65. The order of assessment is dated 29th January, 1966. Aggrieved against the said order, which was apparently made not after a scrutiny of the accounts, the petitioner filed an appeal and obtained relief in part. The Appellate Assistant Commissioner's order is dated 10th August, 1966, and it has become final. After the disposal of the appeal, the petitioner filed a petition dated 9th November, 1966, before the second respondent claiming that a turnover of Rs. 4,73,732.31 ought not to have been included in the original assessment proceedings as assessable turnover under the Madras General Sales Tax Act, as the said turnover related to inter-State purchase of cotton from outside the State and in consequence was not liable to tax under the Madras General Sales Tax Act as the petitioner was not the last purchaser in the chain. The petitioner also requested the Deputy Commercial Tax Officer to delete this turnover from the assessable turnover and rectify the mistake which had crept into the original assessment order of the second respondent. The second respondent wrote back to the petitioner that as the order was the result of his best judgment and not one made after scrutiny of the accounts or acceptance of the returns, there was no error apparent on it and that therefore he was not inclined to entertain the petition for rectification and proceed with it. Even so, the Deputy Commissioner of Commerical Taxes, on revision, would not agree with the petitioner that a case had been made out by him for rectifying the alleged mistake in the originaForder of assessment. The petitioner took up the matter in further revision to the Board of Revenue, the first respondent. The Board also held that there was no material before it to allow the application for rectification and do the needful. As a matter of fact, the Commissioner of Commercial Taxes says :

In the petition first preferred to the Deputy Commercial Tax Officer in November, 1966, the assessee has not spelt out the details of the alleged purchases of cotton from outside the State. In fact, before any conclusion can be drawn, the transactions will all have to be examined de now including the method of payment, of discounting of the bills etc. At least, if these had been clearly and explicitly spelt out (and these are really matters within the peculiar knowledge of the petitioner), then I might have stretched a point. Even before me this has not been done. The presumption of the case invoking Section 55 can hardly be considered adequate to call for intervention after this lapse of time.

3. The Board, therefore, on the merits of the materials placed before it (which means no materials in the instant case), found, as a fact, that there was no justification for rectification. As against this, the present writ petition has been filed.

4. Mr. Srinivasan, the learned counsel for the petitioner, urges that in a case like this, where the material disclosed that the turnover in question ought not to have been included in the assessable turnover at all, then the second respondent was bound to rectify the mistake in the original assessment order, notwithstanding the fact that it was a best judgment assessment. In a case where the assessing authority has to fix the turnover under the sales tax laws by exercising his best of judgment and rejects the books of account and the returns filed by the assessee, then it cannot be said that it is easily susceptible to rectification under Section 55 of the Act, because what was done by the assessing authority was to the best of his judgment, and not on any data furnished by the assessee. If, however, cogent material is placed by the aggrieved person before such authority and he calls upon such authority to revise the order (may be one passed under the best judgment method), then possibly equity requires that the assessing authority should accept the application for rectification and do the needful. If the petitioner had placed such material either before the Deputy Commercial Tax Officer, the original authority, or before the appellate authority before whom he canvassed the propriety of the original order, or before the Deputy Commercial Tax Officer when he sought for rectification of the order, under Section 55 of the Act, or again before the first revisional authority, namely, the Deputy Commissioner of Commercial Taxes when he filed a revision petition canvassing the propriety of the order on his application for rectification, or at the latest before the Board of Revenue when he reagitated the matter once again, then at least the petitioner's bona fides can be accepted and the presumption can be raised that there was some material which escaped the attention of the authorities and justice required that amends should be made for the purpose. But the petitioner, though he had material with him, never attempted to produce the same and it was this which provoked the Board of Revenue to state that it would have at least heard the petitioner on merits, if material had been placed before it to rescrutinise the subject. As on date, and in the records produced pursuant to the issuance of the rule nisi, there is nothing to indicate that the petitioner ever placed any material, acceptable and cogent, for the authorities to act under Section 55 and correct the error which is said to be apparent on the record. As already stated, the original assessment was made on best judgment, and the account books and the material were not accepted by the assessing authority, but returned to the petitioner. Though the petitioner had custody of such material, subsequent to the passing of the assessment order under the best judgment method, yet he would not, in spite of opportunities available to him, disclose it to the appropriate authority compelling it to exercise his discretion to accept the petition for rectification and ultimately pass the necessary orders thereon. Thus no cause for rectification has ever been made in the instant case.

5. Reliance was placed upon Madras Auto Service Private Limited v. Joint Commercial Tax Officer [1969] 23 S.T.C. 111. That was a case where the petitioner came up with a petition under Article 226 of the Constitution, soon after the original authority had passed the order of assessment in the normal way. The writ petition itself was occasioned because of the fact that the original authority refused to rectify the mistake which had crept into the order and which was stated to be apparent on the face of the record. There also the Deputy Commissioner of Commercial Taxes refused to interfere in revision. But before this court the petitioner in that case produced evidence stating that the transactions in question were undoubtedly inter-State sales and that the assessing authority having dealt with those transactions as intra-State sales, there was an error apparent. The distinguishing feature in that case was that the court was apprised of the materials, and records were placed before it to consider whether there was an error apparent on the record at all. As against this, the petitioner herein consistently failed to discharge his duty to satisfy the authorities, up to the level of the Board of Revenue that the transactions in question were inter-State transactions and were not liable to be dealt with under the Madras General Sales Tax Act, 1959.

6. There is yet another point which is against the petitioner. In Madras Auto Service Private Limited v. Joint Commercial Tax Officer [1969] 23 S.T.C. 111 no appeal was filed by the petitioner against the original order of assessment. But in the instant case, a regular appeal was filed and, indeed, the petitioner obtained partial relief by presenting and prosecuting such appeal. It therefore follows that the original order of assessment made by the second respondent as assessing authority is no longer on record, the same having been removed by the subsequent order of the appellate authority which considerably modified the earlier original assessment order.

7. In these circumstances, apart from the fact that there was a merger of the said order of the first authority with the final order of the appellate authority in the instant case, the petitioner cannot have any grievance at this stage against the first order, since at that time he failed to place the necessary material before the assessing authority to accept his books and returns and also for the reason that such books were not the basis on which the first assessment, order was passed. It is fairly conceded that before the appellate authority also this question was not argued nor even raised, and therefore no material was furnished before the appellate authority to consider this issue which is projected in the application for rectification. In my view, once the appellate authority has passed an order setting aside or modifying the earlier order of the original authority and, if the aggrieved party intends to rectify the error apparent in such proceedings, he cannot seek for rectification of alleged mistakes in the original order of assessment but he should seek for such a relief only as against the final subsisting order which is implementable in law and enforceable by the revenue, viz., the appellate order.

8. I have made this position clear on an earlier occasion in W.P. No. 2750 of 1968 Since reported as K. Ambujammal v. Deputy Commercial Tax Officer, Kothavalchavadi Division, Madras- [1972] 29 S.T.C. 368. There I have observed that once the original order becomes merged with the appellate order, then there is a substitution of the original order in all aspects of law and, indeed, factully as well, and that any attempt to rectify the original order, which should be deemed to be non est is a futile one. In this view of the matter also the petitioner cannot succeed.

9. For the reason that the appropriate authorities, for want of material, did not discover any error apparent on the record, which only would entitle the petitioner to reopen the assessment to cause a rectification of the assessment order under Section 55 of the Act, and also for the reason that the application for rectification was directed against the original order of assessment which has become non est, I am unable to issue the rule of mandamus, for there is no public duty on the part of the second respondent to act in the manner sought by the petitioner.

10. The writ petition is dismissed. There will be no order as to costs.


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