1. The Deputy Commercial Tax Officer passed his first order of assessment in 1949 & then revised it on 10-3-1950, because he was of the view that some turnover had escaoed assessment when it was first made. Against that order dated 10-3-1950 the assessee preferred an appeal to the Commercial tax Officer, who dismissed that appeal on 10-5-1951, confirming the revised order of the Deputy Commercial Tax Officer. The amending Act of 1951, which gave a right of appeal to the Tribunal under Section 12-A came into force on 15-5-1951. On 10-5-1951, when the Commercial Tax Officer passed tne order on appeai, there was no rignt of appeal to the Tribunal. Subsequent to 15-0-1951, the assessee preferred a revision petition to the Deputy Commissioner of Commercial Taxes on 27-6-1951, and it was only the Deputy Commissioner that could dispose of that petition in revision. It could not be treated as an appeal and transferred to the Appellate Tribunal. During the pendency oi the application presented by the assessee on 27-6-1951, the Deputy Commissioner of Commercial Taxes issued a notice dated 10-10-1951. Paragraph 2 of that notice ran :
'As the revised final assessment order of the D. C. T. O. Tiruneiveli, cited above, (that is the order dated 10-3-1950) is held to be illegal it is hereby cancelled.'
In paragraph 3 the Deputy Commissioner called upon the assessee to show cause why the tax payable by him should not be assessed on a turnover, the estimate or winch was furnished. Eventually, the Deputy Commissioner passed orders accepting the figure of the Deputy Commercial Tax Oificer in his revised order but really making it as an assessment made in revision by himself; because it should be remembered he purported to set aside the revised order of the Deputy Commercial Tax Officer dated 10-3-1950 as illegal. Against the order of the Deputy Commissioner of Commercial Taxes, the assessee preferred an appeal to the Tribunal under Section 12-A. The Appellate Tribunal rejected the appeal as incompetent. It is against this order that the assessee has preferred this petition in revision.
2. The facts set out above were of Tax Revision Case No. 15 of 1353, which related to the assessment year 1937-1948. The facts in issue were similar for the next assessment year 1948-1949, which formed the subject-matter of Tax Revision Case No. 16 of 1953 also preferred by the assessee.
3. Section 12-A(1) of the Act gives the assessee a right of appeal against an order relating to the assessment passed by the Deputy Commissioner 'suo motu' under Section 12, Sub-section (2). The Appellate Tribunal was of the view that the order passed by the Deputy Commissioner on 28-11-1951 was not an order of assessment passed by the Deputy Commissioner 'suo motu' but an order passed by him under Section 12, Sub-section (2), Sub-clause (2), that is an order passed on the application of the assessee. We are unable to accept that interpretation of the notice issued by the Deputy Commissioner dated 10-10-1951. In para. 2, as we pointed out above, he puiported to set aside the assessment made by the Deputy Commercial Tax Officer, that is, the revised assessment. And in paragraph 3 the Deputy Commissioner purported to assess the assessee, himself, that is, in exercise of the powers given to him by Section 12(2)(1). That is, he purported to treat it as a matter taken up 'suo motu' by himself despite the fact that earlier he had been moved by the assessee to grant him relief.
It is rather difficult to hold in the face of the wording of the Deputy Commissioner's notice that what he purported to do eventually on 28-11-1951 was only on the basis of the revision petition preferred to him by the assesses and not on what he could take up himself 'suo motu' on the material placed before him.
4. The learned Government Pleader contended that the powers of the Deputy Commissioner under clauses (1) and (2) of Section 12(2) are mutually exclusive, and that when once an application is made to the Deputy Commissioner, he has no jurisdiction to take up the matter 'suo motu'. We are unable to accept this contention. The assessee may ask for relief; but on an examination of the records, the Deputy Commissioner or other revising authority may discover something which necessitates the matter being taken up 'suo motu'. All that Sub-clause (6) of Section 12 requires is that before any assessment is enhanced, notice should be given to the assessee. We have already pointed out that what the Deputy Commissioner purported to do in this case was to set aside the assessment already made and make a fresh assessment himself. No doubt, a notice was issued to the assessee which fulfilled the requirements of Section 12(6). The powers in Sub-section (1) and Sub-section (2) of Section 12(2) are not mutually exclusive. In this ease, the Deputy Commissioner purported to act 'suo motu', and in fact, he did act 'suo motu' in making the final assessment.
5. We therefore set aside the order of the Tribunal and hold that the appeals are maintainable. We direct the Appellate Tribunal to take the appeals on file and dispose them of according to law. There will, however, be no order as to costs on these petitions.