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Easun Engineering Co. Ltd. Vs. the Government of Madras - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 207 of 1969 (Revision No. 138 of 1969)
Judge
Reported in[1974]33STC350(Mad)
AppellantEasun Engineering Co. Ltd.
RespondentThe Government of Madras
Appellant AdvocateK. Mani, Adv. for Ramachandran ;and V. Narayanamurthy
Respondent AdvocateK. Venkataswami, First Assistant Government Pleader
DispositionPetition dismissed
Cases ReferredEasun Engineering Co. Ltd. v. Joint Commercial Tax Officer
Excerpt:
- .....of rs. 2,75,96,063.55 under the central sales tax act. the assessee filed an appeal before the appellate assistant commissioner challenging the assessment in so far as it related to a turnover of rs. 2,38,472, which it claimed to be sales in the course of import and hence not taxable under the said act. the appellate assistant commissioner heard the appeal on 1st august, 1966, and 16th august, 1966. by that time the decision of the supreme court in khosla and co. (p.) ltd. v. deputy commissioner of commercial taxes [1966] 17 s.t.c. 473, was rendered in january, 1966. it is said, the assessee wanted to take advantage of the said decision and question the assessment in relation to another turnover of rs. 30,00,000 and odd. when the petitioner approached the appellate assistant.....
Judgment:

Ramanujam, J.

1. The petitioner was assessed for the year 1964-65 on a total taxable turnover of Rs. 2,75,96,063.55 under the Central Sales Tax Act. The assessee filed an appeal before the Appellate Assistant Commissioner challenging the assessment in so far as it related to a turnover of Rs. 2,38,472, which it claimed to be sales in the course of import and hence not taxable under the said Act. The Appellate Assistant Commissioner heard the appeal on 1st August, 1966, and 16th August, 1966. By that time the decision of the Supreme Court in Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes [1966] 17 S.T.C. 473, was rendered in January, 1966. It is said, the assessee wanted to take advantage of the said decision and question the assessment in relation to another turnover of Rs. 30,00,000 and odd. When the petitioner approached the Appellate Assistant Commissioner, it was informed that final orders had been passed in the appeal. Therefore, the assessee was not able to file additional grounds of appeal before the Appellate Assistant Commissioner. Ultimately, the appellate authority passed an order on 24th November, 1966, allowing the appeal in its entirety, upholding the claim of the assessee for exemption on the turnover of Rs. 2,38,472 as being sales in the course of import. Thereafter, the assessee purported to file an appeal before the Tribunal questioning the assessment on the said turnover of Rs. 30,00,000, which was not the subject-matter before the appellate authority, but was challenged for the first time before the Tribunal. After the appeal was numbered by the Tribunal, the assessee filed an application to raise some additional grounds and it was allowed.

2. When the appeal came up for hearing before the Tribunal, the revenue contended that the appeal itself was not maintainable as the turnover disputed before it was not before the appellate authority and that it was more a first appeal questioning a part of the turnover assessed before the Tribunal. The Tribunal upheld the said objection taken by the revenue and dismissed the appeal of the assessee holding that the appeal was not maintainable.

3. Before us, the assessee contends that the order of the Tribunal holding that the appeal is not maintainable cannot be sustained in law. We are definitely of the opinion that the view of the Tribunal that the appeal filed by the assessee challenging the turnover of Rs. 30,00,000 and odd before the Tribunal cannot be maintained, is right. Section 36(1) of the Madras General Sales Tax Act enables an assessee to file an appeal before the Tribunal if he objects to the order passed by the Appellate Assistant Commissioner under Section 31(3). In this case, the Appellate Assistant Commissioner allowed the appeal filed by the assessee in its entirety. Therefore, the assessee could not have any objection to the order passed by the Appellate Assistant Commissioner as such. It may be that the assessee may have an objection to the original order of assessment, in so far as it has not taken note of the decision of the Supreme Court referred to above. But, so long as the assessee has not disputed the turnover of Rs. 30,00,000 and odd before the appellate authority, he cannot straightaway file an appeal before the Tribunal in respect of the said turnover. The Tribunal pertinently pointed out that, even though the judgment of the Supreme Court in Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes [1966] 17 S.T.C. 473 , was rendered in January, 1966, the assessee did not take any steps to file additional grounds of appeal before the appellate authority and call upon it to decide whether the said sum of Rs. 30,00,000 and odd represented sales in the course of import. The only turnover which the assessee disputed before the appellate authority, as already stated, was Rs. 2,38,472 and the claim for exemption in relation to that turnover was upheld by the Appellate Assistant Commissioner. The fact that the assessee contemplated to file additional grounds of appeal before the Appellate Assistant Commissioner in relation to the said sum of Rs. 30,00,000 and odd but did not in fact do so, is not sufficient to hold that the appeal before the appellate authority comprehended also the disputed sum of Rs. 30,00,000 and odd. On the facts, the Tribunal is right in saying that the assessee challenged the assessment in relation to the said sum of Rs. 30,00,000 and odd for the first time only in January, 1967, by filing an appeal before it. If really the assessee was aggrieved against the assessment in respect of that turnover it should have included that turnover also in his appeal before the appellate authority, or should have taken the permission of the Appellate Assistant Commissioner to expand the appeal by including the disputed turnover of Rs. 30,00,000 and odd. But no such step was taken. We are, therefore, of the view that the Tribunal was right in rejecting the appeal as not maintainable.

4. Against the same order of the Tribunal, which is now before us, the assessee filed Writ Petition No. 427 of 1970, reported as Easun Engineering Co. Ltd. v. Joint Commercial Tax Officer [1970] 26 S.T.C. 486, and a Division Bench of this Court, to which one of us was a party, considered the order of the Tribunal and held that the Tribunal exercised its jurisdiction correctly in not entertaining the appeal relating to the turnover which was not the subject-matter of appeal before the Appellate Assistant Commissioner. The order of the Tribunal was, therefore, upheld.

5. The tax case is, therefore, dismissed with costs. Counsel's fee Rs. 150.


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