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The Mahalakshmi Textile Mills Limited Vs. the Deputy Commercial Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Petition No. 1519 of 1968
Judge
Reported in[1973]30STC412(Mad)
AppellantThe Mahalakshmi Textile Mills Limited
RespondentThe Deputy Commercial Tax Officer and anr.
Appellant Advocate C.S. Chandrasekhara Sastry, Adv.
Respondent Advocate K. Venkataswami, the First Assistant Government Pleader
Excerpt:
.....legal remedies provided for within the time allowed cannot circumvent the law and insist that suo motu powers of the deputy commissioner should be invoked in their favour. his grievance is that the deputy commissioner failed to exercise his jurisdiction under section 32 of the act, though normally he is obliged to do so. i am unable to agree with the contention that suo motu powers are exercisable only if the authority vested with the power is subjectively satisfied about the exercise of such power or if he minds to do so. there is nothing wrong in such circumstances for an aggrieved assessee requesting the quasi-judicial tribunal to exercise the power vested in him which he failed to do so voluntarily and by himself. the second respondent, therefore, has failed in his public duty in..........legal remedies provided for within the time allowed cannot circumvent the law and insist that suo motu powers of the deputy commissioner should be invoked in their favour. they are also informed that the limitation of 4 years has also already expired except in the case of assessments for 1960-61 and 1962-63. their request for revising assessments already became final cannot therefore be complied with.2. it is as against this the present writ petition has been filed. mr. chandrasekhara sastry, the learned counsel for the petitioner says that he is confining the relief in this writ petition for the years 1960-61 and 1962-63 only. his grievance is that the deputy commissioner failed to exercise his jurisdiction under section 32 of the act, though normally he is obliged to do so. but the.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. The petitioner still feels that he has not exhausted himself, though he has availed himself of the normal remedies such as appeal to the Appellate Assistant Commissioner, further appeal to the Appellate Tribunal, further reference to the High Court and also seeking after seeking for rectification of the original order by applying to the assessing authority and also by furthering the process by approaching the Deputy Commissioner to correct the order of the assessing authority who refused to rectify. It appears that whilst he was availing himself of such further remedies as above, he filed an application dated 26th July, 1967, to the Deputy Commissioner to exercise his powers suo motu under Section 32 to revise the orders of assessment (which was the subject-matter of the appeals as above as also applications for rectification) on the ground that he had a good case for such exercise of jurisdiction by the Deputy Commissioner and in the ultimate analysis would also be entitled to a refund of the tax paid by him under the final orders of assessment. He filed such applications requesting the Deputy Commissioner (Commercial Taxes), Madurai Division, to invoke his powers under Section 32 of the Madras General Sales Tax Act, 1959, in relation to orders of assessment for the years 1953-54 to 1962-63. The Deputy Commissioner passed the following order;

The petitioners are informed that the provisions of Section 32 of the Madras General Sales Tax Act, 1959, cannot be invoked on application and that the petitioners having failed to avail of the other legal remedies provided for within the time allowed cannot circumvent the law and insist that suo motu powers of the Deputy Commissioner should be invoked in their favour. They are also informed that the limitation of 4 years has also already expired except in the case of assessments for 1960-61 and 1962-63. Their request for revising assessments already became final cannot therefore be complied with.

2. It is as against this the present writ petition has been filed. Mr. Chandrasekhara Sastry, the learned counsel for the petitioner says that he is confining the relief in this writ petition for the years 1960-61 and 1962-63 only. His grievance is that the Deputy Commissioner failed to exercise his jurisdiction under Section 32 of the Act, though normally he is obliged to do so. But the revenue's contention is that such a power cannot be invoked by an assessee or an aggrieved person, as the section provides for the exercise of such power voluntarily by the authority. The words 'suo motu' are so interpreted by the revenue. I am unable to agree with the contention that suo motu powers are exercisable only if the authority vested with the power is subjectively satisfied about the exercise of such power or if he minds to do so. Circumstances may arise when such authorities vested with judicial functions might inadvertently or by a mistake avoid the exercise of power to call for the records of the subordinate officer whose order projects an illegality or an irregularity. There is nothing wrong in such circumstances for an aggrieved assessee requesting the quasi-judicial tribunal to exercise the power vested in him which he failed to do so voluntarily and by himself. The Tribunal of ceurse has the final say in the matter. That this is the position is settled by our High Court by a decision of a Division Bench, to which I was a party, in W.P. Nos. 4629 and 4630 of 1965 [Raj Brothers Agencies, Madras-6 v. Board of Revenue (by Commissioner of Commercial Taxes), Madras-5 at page 410 supra]. Veeraswami, J,, (as he then was) speaking for the Bench said that 'if the Board of Revenue meant by its order that because Section 34(1) provides for suo motu power and therefore no party however aggrieved could move the Board to exercise that power, it would be a wrong view to take'. Under Section 34 of the earlier Act, it was the Board of Revenue which could exercise suo motu powers of revision ; but, under the present Act, it is the Deputy Commissioner of Commercial Taxes. This dictum, therefore, squarely applied to the facts of this case. The second respondent, therefore, has failed in his public duty in not having acted under Section 32 of the Act and considered the propriety or necessity of exercising the power. It is for him to decide one way or the other but he cannot refuse to act.

3. The petitioner also has asked for a direction for the refund of tax. I am not inclined to entertain such a request at this stage, because it is for the Deputy Commissioner of Commercial Taxes to consider the application for invocation of his power under Section 32, bearing in mind all the processes and means of redress already availed of by the petitioner. The petitioner succeeds in part and the rule nisi is restricted to the purpose indicated above. No costs.


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