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Deputy Commissioner of Commercial Taxes, Tiruchirapalli Division Vs. A. Abdul Shukoor and Company - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Limitation
CourtChennai High Court
Decided On
Case NumberTax Case No. 410 of 1970 (Revision No. 272)
Judge
Reported in[1977]39STC137(Mad)
AppellantDeputy Commissioner of Commercial Taxes, Tiruchirapalli Division
RespondentA. Abdul Shukoor and Company
Appellant AdvocateK. Venkataswami, the Government Pleader No. I
Respondent AdvocateC. Natarajan, Adv.
DispositionPetition allowed
Cases ReferredGajalakshmi Ginning Factory v. Commissioner of Income
Excerpt:
- - there could be no doubt that under section 36(3) the tribunal has the power to remand the matter for a fresh consideration even in a case where the appeal is against an order of the deputy commissioner made under section 32. this power could clearly be found in section 36(3)(a)(iii), which enables the tribunal to pass such orders as it may think fit while disposing of an appeal......dealers in hides and skins are liable to be taxed at multi-point on their purchase turnover. the deputy commissioner, therefore, invoking his powers under section 32 of the tamil nadu general sales tax act, 1959 (hereinafter called the act), issued a notice to the assessees calling upon them to show cause as to why the taxable turnover should not be revised including the entire turnover exempt as taxable. after a consideration of the objections filed by the assessees, by an order dated 3rd july, 1961, the deputy commissioner, coimbatore, refixed the taxable turnover at rs. 5,17,337.36. the assessees preferred an appeal to the tribunal under section 36 of the act. though the tribunal confirmed the view that the turnover of unlicensed dealers in hides and skins were not exempt and that,.....
Judgment:

V. Ramaswami, J.

1. The respondent-assessees were dealers in hides and skins. They were unlicensed dealers. In the view that unlicensed dealers were not liable to pay sales tax, the Deputy Commercial Tax Officer, Ambur, held that the entire turnover of Rs. 5,17,337.36 was exempt from taxation and made an order accordingly on 13th June, 1958. Subsequent to this order, the Supreme Court reversing the decision of this court held that unlicensed dealers in hides and skins are liable to be taxed at multi-point on their purchase turnover. The Deputy Commissioner, therefore, invoking his powers under Section 32 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter called the Act), issued a notice to the assessees calling upon them to show cause as to why the taxable turnover should not be revised including the entire turnover exempt as taxable. After a consideration of the objections filed by the assessees, by an order dated 3rd July, 1961, the Deputy Commissioner, Coimbatore, refixed the taxable turnover at Rs. 5,17,337.36. The assessees preferred an appeal to the Tribunal under Section 36 of the Act. Though the Tribunal confirmed the view that the turnover of unlicensed dealers in hides and skins were not exempt and that, therefore, liable to pay sales tax, allowed the assessees to raise a new contention for the first time before the Tribunal that some of the transactions were export sales or sales in the course of export and, therefore, not liable to sales tax under the Act. Since the consideration of this question involved permitting the assessees to adduce further evidence and a consideration of the same on merits, the Tribunal remanded the case to the Deputy Commissioner with a direction to consider the question of sales in the course of export. This order of the Tribunal was made on 24th July, 1963. While the proceedings were at this stage, the Joint Commercial Tax Officer, Ambur, purported to consider the issue by an order dated 3rd June, 1966 and held that the transactions were not liable to be taxed. The Deputy Commissioner considered that this order of the Joint Commercial Tax Officer was without jurisdiction as the matter was not remanded to the Joint Commercial Tax Officer by the Tribunal. Holding that the Joint Commercial Tax Officer's order dated 3rd June, 1966, was without jurisdiction and null and void, the Deputy Commissioner set aside that order by his order dated 14th December, 1966 ; thereafter, the Deputy Commissioner proceeded to consider the case in pursuance of the Tribunal's order of remand. After issuing notice to the assessees and hearing them, by an order dated 3rd January, 1967, the Deputy Commissioner held in the remanded proceedings that none of the turnover was in the course of export and that the entire turnover was therefore taxable. The assessees preferred an appeal to the Tribunal.

2. The main contention of the appellants before the Tribunal was that the order dated 3rd January, 1967, of the Deputy Commissioner was made beyond the period prescribed under Section 32(2) and that, therefore, it is illegal. This point found favour with the Tribunal. The State has filed this revision petition.

3. There can be no dispute that the order of the Joint Commercial Tax Officer dated 3rd June, 1966, was without jurisdiction. The order of remand by the Tribunal was to the Deputy Commissioner and, therefore, the matter could not have been dealt with by the Joint Commercial Tax Officer. The Deputy Commissioner was therefore right in taking up the remanded case himself and dealing with it. The only question therefore in this revision petition also is as to whether the order of the Deputy Commissioner dated 3rd January, 1967, was made beyond the period of limitation. Under Section 32, the Deputy Commissioner may of his own motion call for and examine the order passed by the appropriate authority and pass such order thereon as he thinks fit. The provision which prescribes the period of limitation is contained in Section 32(2) and that reads as follows :

32. (2) The Deputy Commissioner shall not pass any order under Sub-section (1), if-

(a) the time for appeal against the order has not expired ;

(b) the order has been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal, or of a revision in the High Court; or

(c) more than five years have expired after the passing of the order.

4. It is not disputed that the original order of the Deputy Commissioner dated 3rd July, 1961, was made within the period prescribed. Against this order under Section 32 an appeal is provided under Section 36. Section 36(3), which deals with the powers of the Appellate Tribunal, reads as follows:

36. (3) In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard,-

(a) in the case of an order of assessment-

(i) confirm, reduce, enhance or annul the assessment or penalty or both;

(ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or

(iii) pass such other orders as it may think fit; or

(b) in the case of any other order, confirm, cancel or vary such order....

5. We have omitted the provisos as they are not relevant for the point under consideration. There could be no doubt that under Section 36(3) the Tribunal has the power to remand the matter for a fresh consideration even in a case where the appeal is against an order of the Deputy Commissioner made under Section 32. This power could clearly be found in Section 36(3)(a)(iii), which enables the Tribunal to pass such orders as it may think fit while disposing of an appeal. Similar provisions contained in Section 254 of the Income-tax Act, 1961, had been construed by this court consistently as enabling the appellate authority to remand the matter to the authority from whom the appeal is preferred and even to the original authority. If any reference is needed, reference may be made to Gajalakshmi Ginning Factory v. Commissioner of Income-tax, Madras : [1952]22ITR502(Mad) . Therefore, in disposing of an appeal preferred against an order under Section 32 the Tribunal has jurisdiction to remand the matter to the Deputy Commissioner for fresh consideration.

6. Now the question is, for an order to be made in the remanded proceedings, does the limitation prescribed under Section 32(2) apply We have no doubt that the period prescribed under Section 32(2) is applicable only for an order made by the Deputy Commissioner in his suo motu proceedings, but it will not apply to a case where he was dealing with it in pursuance of the directions of the appellate or revisional authority. In fact, if it were to be otherwise, it will lead to very absurd results. For instance, if an order was made almost at the end of the period, the Appellate Tribunal would have no right to remand the proceedings as its order of remand could not be given effect to. If the Deputy Commissioner is expected to make an order taking into account the time that may be required for disposal of any appeal that may be preferred so that in case an order of remand is made he will be in a position to make the order within the period of four years prescribed under Section 32(2), it will be unduly limiting his jurisdiction to act within the period of four years as provided in the Act. Further, the language used in Section 32 itself shows that it is intended to apply only to an order that has to be made by it when it exercises its powers originally. The requirement as to the expiry of the time for appeal, the order being not the subject-matter of appeal to the Assistant Commissioner or the Tribunal or the revision referred to in Clause (2) of Section 32 and giving of opportunity before making an adverse order under Section 32(2) would all be inconsistent with the view that even after the remand the period prescribed under Section 32(2)(c) would have to be complied with. The matter is also not res Integra. The Supreme Court had occasion to consider a similar limitation prescribed in Section 132(5) of the Income-tax Act. Under that provision, the Income-tax Officer had to make an order within a period of 90 days. Such an order was made by the Income-tax Officer in a particular case within the period of 90 days. The assessee filed a writ petition in the Delhi High Court, which set aside that order on the ground that the principles of natural justice had been violated and directed the Income-tax Officer to reconsider the matter afresh. When a fresh order was made after complying with the principles of natural justice, the assessee challenged it on the ground that the latter order was made beyond the period of 90 days prescribed under Section 132(5). The Delhi High Court accepted this contention and said that the order would have to be made within the period of 90 days and that the assessee was not estopped from contending against its validity. The Supreme Court in Director of Inspection of Income-tax v. Pooran Mall & Sons : [1974]96ITR390(SC) , held that if once an order was made within a period of 90 days the subsequent order made in pursuance of an order of remand or direction by the High Court could be at any time. The learned Judges pointed out that an appeal is provided under Section 132(11) against an order under Section 132(5) and the appellate authority could make such order as it thinks fit. If even after a remand the order will have to be made within a period of 90 days, in the words of the Supreme Court 'it would make sub-sections (11) and (12) of Section 132 ridiculous and useless'. We have, therefore, no doubt that the period prescribed under Section 32(2) of the Tamil Nadu General Sales Tax Act would not apply to a fresh order to be made by the Deputy Commissioner in pursuance of a remand order made by the Appellate Tribunal. The tax revision case is accordingly allowed and the order of the Tribunal is set aside. The petitioners will be entitled to their costs. Counsel's fee Rs. 250.


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