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Deputy Commissioner of Commercial Taxes, Madras Division Vs. R.V. Ramiah Chetty and Company - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 220 of 1964 and Revision No. 147
Judge
Reported in[1968]22STC217(Mad)
AppellantDeputy Commissioner of Commercial Taxes, Madras Division
RespondentR.V. Ramiah Chetty and Company
Appellant AdvocateK. Venkataswami, Adv. for ;the Additional Government Pleader
Respondent Advocate K. Rajah Iyer, Adv. for ;R.S. Venhatachari, Adv.
DispositionPetition dismissed
Cases ReferredSales Tax Officer v. Hanuman Prasad
Excerpt:
- - on a provision more or less like the proviso we are called upon to construe, the supreme court in sales tax officer v......authority on 3rd october, 1958, revised the original order, which was given effect to by the original authority passing a fresh order dated 30th october, 1958. on 14th february, 1962, the assessment commercial tax officer, in purported exercise of his power under section 16(1) of the madras general sales tax act, 1959, called upon the assessee to show cause why the turnover should not be enhanced as having escaped assessment. actually, this officer passed an order dated 28th march, 1962, including a certain amount, of turnover as having escaped assessment. the tribunal held that the last order was passed without jurisdiction.2. in our opinion, the tribunal was right. the assessment, as we said, was under the old act. the old act was repealed by the madras general sales tax act,.....
Judgment:

Veeraswami, J.

1. In this case the original order of assessment was made on 15th April, 1958, under the provisions of the Madras General Sales Tax Act, 1939. This order was the subject-matter of an appeal under Section 11 of that Act. The appellate authority on 3rd October, 1958, revised the original order, which was given effect to by the original authority passing a fresh order dated 30th October, 1958. On 14th February, 1962, the Assessment Commercial Tax Officer, in purported exercise of his power under Section 16(1) of the Madras General Sales Tax Act, 1959, called upon the assessee to show cause why the turnover should not be enhanced as having escaped assessment. Actually, this officer passed an order dated 28th March, 1962, including a certain amount, of turnover as having escaped assessment. The Tribunal held that the last order was passed without jurisdiction.

2. In our opinion, the Tribunal was right. The assessment, as we said, was under the old Act. The old Act was repealed by the Madras General Sales Tax Act, 1959. But by the proviso to Sub-section (1) of Section 61, certain savings were effected. The proviso reads as follows:

Provided that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder and subject thereto, anything done or any action taken including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit in the exercise of any power conferred by or under the said Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.

3. The proviso is in three parts. First it says that the repeal shall not affect the previous operation of the old Act; secondly, it shall not affect any right, title, obligation or liability already acquired thereunder ; and thirdly, subject thereto, anything done or any action taken shall be deemed to have been done or taken in the exercise of the powers conferred under the new Act, as if the new Act were in force on the date on which such thing was done or action was taken. The right or liability acquired by the assessee should be determined as on the date when he filed the return and that means as under the provisions of the old Act. On a provision more or less like the proviso we are called upon to construe, the Supreme Court in Sales Tax Officer v. Hanuman Prasad [1967] 19 S.T.C. 87 observed :

The rights and liabilities, which had been acquired or incurred tinder the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force.

4. Under the old Act, Rule 17 of the Madras General Sales Tax Rules provided for assessment of turnover which had escaped assessment. In cases where the assessment order had been revised by an appellate authority in appeal, the power to bring to tax escaped turnover was vested by that rule in the appellate authority itself, then the Commercial Tax Officer, who had no original jurisdiction under the provisions of the old Act. The rule also prescribed a time-limit for exercise of the power. Section 16 of the new Act enables the original authority itself to exercise such power, even in a case where the original order has been revised by an appellate authority. Call it a right or liability, which was acquired or incurred by the assessee under the old provisions, the Commercial Tax Officer alone, as appellate authority by revising his earlier order, could bring to tax the escaped turnover. There is nothing in the proviso to Section 61(1) which permits application to such a case of Section 16, which vests the power to tax escaped assessment in the original authority even in case of orders revised by the appellate authority. Under the new Act, the jurisdiction of the Commercial Tax Officer in this matter under the old provisions is not continued. In the circumstances, we are of opinion that the Tribunal was right in its conclusion that the Assessment Commercial Tax Officer has no jurisdiction as an original authority to make the order which he did.

5. Subsequent to the order, Madras Act 10 of 1963 came into force with retrospective effect. We do not think that this Act will affect the position. In fact, the Amending Act directs that any right acquired or liability incurred and any legal proceedings instituted or continued or enforced in respect of it shall be viewed as if the Amending Act had not been passed. On that basis too, the Assessment Commercial Tax Officer will have no jurisdiction to pass the order.

6. The petition is dismissed with costs. Counsel's fee Rs. 100.


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