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Mallika Battery Service Vs. Deputy Commercial Tax Officer, Royapettah Division - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Petition Nos. 2496, 2497 and 2498 of 1966
Judge
Reported in[1972]29STC583(Mad)
AppellantMallika Battery Service
RespondentDeputy Commercial Tax Officer, Royapettah Division
Appellant Advocate S. Narayanaswami and ; T.V. Ramanathan, Advs.
Respondent Advocate K. Venkataswami, First Assistant Government Pleader
Disposition Petition allowed
Excerpt:
- - as on the issue of a rule nisi under article 226, the respondent is bound to produce the records connected with the subject-matter, i caused a perusal of the same and asked the government pleader appearing for the respondent as to what was the reason behind the issue of these notices, when earlier the assessing authorities and on one occasion the appellate authority were satisfied that the sales effected by the petitioner were all second sales......the language used is slightly different, to wit:the exemptions allowed in respect of second sales of batteries are not in order as they are old batteries purchased, recharged and sold.4. aggrieved on the proposal so made by the respondent, the petitioner has come up to this court challenging the power of the respondent to issue such notices.5. the relevant facts preceded the issue of the notices are as follows : for the year 1962-63, the assessment was completed on 29th november, 1963; for the year 1963-64 on 14th november, 1964, and for the year 1964-65 on 31st december, 1965. on a perusal of the said orders of assessment which have become final, it is seen that the assessing authority accepted the position that the dealer purchased automobile batteries locally by paying 7 per.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. In these three writ petitions, the petitioner is questioning the action of the respondent in having issued three independent notices for three assessment years 1962-63, 1963-64 and 1964-65 calling upon the petitioner to answer a charge of escapement of tax. The notices seem to have been issued evidently under Section 16 of the Tamil Nadu General Sales Tax Act.

2. I shall quote the relevant portions of one such notice which is enough for the purpose. After stating that the petitioner was assessed to tax for the relevant year in question on a specified taxable turnover, the respondent proceeds to state :

It is now found that the dealers were given exemption wrongly in respect of batteries locally purchased and rebuilt by them and also uncharged batteries purchased and sold as charged batteries. It is, therefore, proposed to revise the assessment.

3. In the other notices, the language used is slightly different, to wit:

The exemptions allowed in respect of second sales of batteries are not in order as they are old batteries purchased, recharged and sold.

4. Aggrieved on the proposal so made by the respondent, the petitioner has come up to this court challenging the power of the respondent to issue such notices.

5. The relevant facts preceded the issue of the notices are as follows : For the year 1962-63, the assessment was completed on 29th November, 1963; for the year 1963-64 on 14th November, 1964, and for the year 1964-65 on 31st December, 1965. On a perusal of the said orders of assessment which have become final, it is seen that the assessing authority accepted the position that the dealer purchased automobile batteries locally by paying 7 per cent, tax and hence the second sales of such batteries were exempt from the sales tax. This is the common position for all the three years excepting that there was a variation in the rate of tax. I may also incidentally mention what happened during the assessment year 1961-62. The assessing authority in that case took up a similar position as that taken by the respondent in these writ petitions and assessed to tax such second sales of batteries made by the petitioner. The petitioner took up the matter in appeal and, the appellate authority found after having obtained a report from the assessing authority that the petitioner purchased new uncharged batteries locally and the same having suffered a single point tax, the sale of such batteries by the petitioner would only be as second sales of such batteries and, therefore, they were not liable to tax at that point or stage. Practically it was conceded by the appellate authority that the batteries in question were at all material times goods which were subjected to single point levy at the appropriate stage and therefore exempt from tax when they were resold again after being charged. The respondent has issued the impugned notices and has stated that he has found that the dealers were given exemption wrongly. As on the issue of a rule nisi under Article 226, the respondent is bound to produce the records connected with the subject-matter, I caused a perusal of the same and asked the Government Pleader appearing for the respondent as to what was the reason behind the issue of these notices, when earlier the assessing authorities and on one occasion the appellate authority were satisfied that the sales effected by the petitioner were all second sales. Both the counsel and myself searched in vain for any reason which could have prompted a reasonable person to issue these notices.

6. I have expressed the view in Writ Petition No. 4 of 1967 that, though the power to revise under Section 16 of the Act is wide enough, yet it ought to be exercised with caution and on objective material available to the authority to undertake such an action under Section 16. In that case I said that

the field for the exercise of such power is wide enough ; but it is circumscribed by one important and singular fact, namely, that there should be some reason to reopen. Such reason should not be drawn barely from the subjective satisfaction of the authority concerned but should also satisfy the test of objectivity.

7. As already stated, the records do not disclose as to what at all was the reason for the reopening of a closed assessment. In the peculiar circumstances of this case when the transactions were scrutinised and rescrutinised by the appellate authority for the earlier year and in the absence of any material on record to show that there was some reason to reopen the assessments and thereby justify the exercise of jurisdiction under Section 16 of the Tamil Nadu General Sales Tax Act, I am unable to sustain the impugned notices, as they are not authorised. The respondent lacks jurisdiction ab initioto invoke Section 16 of the Act to issue the challenged notices. In this view of the matter, the rules are made absolute and the writ petitions are allowed. There will be no order as to costs.


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