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Dunlop India Ltd. Vs. Joint Commercial Tax Officer, Mount Road Ii Division - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberT.C. No. 37 of 1974 (Appeal No. 5 of 1974)
Judge
Reported in[1978]41STC41(Mad)
AppellantDunlop India Ltd.
RespondentJoint Commercial Tax Officer, Mount Road Ii Division
Appellant AdvocateA.C. Muthanna and ;I. Subramanian, Advs.
Respondent AdvocateAdditional Government Pleader
DispositionPetition dismissed
Excerpt:
.....there is nothing in law preventing a person like the assessees from drawing the attention of the deputy commissioner to any defect present in the order of the authorities mentioned in section 32 for the exercise of his suo motu powers of revision thereunder, still when the deputy commissioner passes an order interfering with the order of a subordinate authority, it will be an order passed in exercise of the suo motu powers of revision. however, if the deputy commissioner declines to interfere with the order of the subordinate authority, the intimation as to his having declined to interfere with the order communicated to a party which drew the attention of the deputy commissioner to a particular defect will not be considered to be an order made under section 32(1). only when an order is..........officer refused to interfere with the original assessment order, the petitioners approached the deputy commissioner, commercial taxes, madras, under section 33 of the act against the order of the assessing officer dated 26th february, 1971. in the alternative, the petitioners requested the deputy commissioner to invoke his suo motu powers of revision under section 32 of the act and revise the assessment order. the deputy commissioner by his order dated 11th april, 1972, held that the petitioners failed to claim deduction at the time of final assessment and did not file an appeal against the assessment and allowed the same to become final and that, therefore, it was not open to the petitioners to seek remedy by way of a petition for rectification under ection 55 of the act. he also.....
Judgment:

Ismail, J.

1. The matter relates to the assessment year 1968-69. The petitioners were finally assessed on a total and taxable turnover of Rs. 7,92,92,517.87 and Rs. 6,92,51,009.38 respectively by the Joint Commercial Tax Officer, Mount Road II Division, in his proceedings dated 31st December, 1969. The taxable turnover included a sum of Rs. 1,90,112 relating to the fitting of rubber tyres on metal tank wheels and top rollers for the Heavy Vehicles Factory, Avadi, assessed at 12 per cent. This amount was included in the taxable turnover returned by the dealers themselves. The petitioners did not file an appeal objecting to the assessment of any portion of the turnover. On 23rd December, 1970, the petitioners addressed the assessing officer requesting to revise the assessment for 1968-69 deleting the turnover of Rs. 1,90,112 and also to revise the assessment for 1967-68 in respect of similar turnover. The Joint Commercial Tax Officer, Mount Road II, Madras, by his proceedings dated 26th February, 1971, informed the petitioners that the assessments made for 1967-68 and 1968-69 could not be revised at that stage as final orders had already been passed. The petitioners approached the assessing authority obviously under Section 55 of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as the Act, seeking a modification of the order. After the assessing officer refused to interfere with the original assessment order, the petitioners approached the Deputy Commissioner, Commercial Taxes, Madras, under Section 33 of the Act against the order of the assessing officer dated 26th February, 1971. In the alternative, the petitioners requested the Deputy Commissioner to invoke his suo motu powers of revision under Section 32 of the Act and revise the assessment order. The Deputy Commissioner by his order dated 11th April, 1972, held that the petitioners failed to claim deduction at the time of final assessment and did not file an appeal against the assessment and allowed the same to become final and that, therefore, it was not open to the petitioners to seek remedy by way of a petition for rectification under ection 55 of the Act. He also held that the petitioners were not entitled to invoke even the special powers vested in him under Section 32 of the Act, in view of the fact that they had failed to avail themselves of the statutory remedy of appeal. Consequently, the petition preferred by the petitioners was rejected. Thereafter, the petitioners approached the Board of Revenue, (Commercial Taxes), Madras. The Board of Revenue pointed out that the jurisdiction of the Board was invoked obviously under Section 34 of the Act and about this there is no controversy. While declining to revise the orders passed by the assessing authority, the Board of Revenue merely reduced the rate of tax. It is against this order of the Board of Revenue that the present tax appeal has been filed under Section 37 of the Act.

2. we are of the opinion that the entire proceedings so far taken by the assessees had been misconceived. However, the assessees had invoked the jurisdiction of the Deputy Commissioner under Section 32 of the Act. That being a jurisdiction to exercise the suo motu powers of revision vested in the Deputy Commissioner, the ultimate order, if any, passed by the Deputy Commissioner would also be in exercise of his suo motu powers of revision. It may be noticed that the Act makes a distinction between the exercise of powers by the Deputy Commissioner suo motu under Section 32 of the Act and the exercise of powers by him at the instance of a party under Section 33 of the Act. Even assuming that there is nothing in law preventing a person like the assessees from drawing the attention of the Deputy Commissioner to any defect present in the order of the authorities mentioned in Section 32 for the exercise of his suo motu powers of revision thereunder, still when the Deputy Commissioner passes an order interfering with the order of a subordinate authority, it will be an order passed in exercise of the suo motu powers of revision. However, if the Deputy Commissioner declines to interfere with the order of the subordinate authority, the intimation as to his having declined to interfere with the order communicated to a party which drew the attention of the Deputy Commissioner to a particular defect will not be considered to be an order made under Section 32(1). Only when an order is made under Section 32(1) of the Act, a further revision will be available to the Board of Revenue under Section 34 of the Act and a mere rejection of a petition like the one preferred by the petitioners in this case by the Deputy Commissioner declining to interfere with the order of the assessing officer will not constitute an order under Section 32(1) of the Act. So long as the proceedings of the Deputy' Commissioner in the present case dated 11th April, 1972, is not an order made under Section 32(1) of the Act, no revision to the Board of Revenue against such proceedings is competent. Consequently, when the Board of Revenue declined to interfere with the order of the Deputy Commissioner, what the Board of Revenue did was merely to intimate the petitioners that the Board was not prepared to exercise its suo motu powers of revision under Section 34(1) of the Act and that intimation itself will not constitute an order under Section 34(1) of the Act so as to enable the petitioners to invoke the appellate jurisdiction of this court under Section 37 of the Act. What we have stated with regard to the Deputy Commissioner's interference under Section 32(1) of the Act will equally apply to the Board of Revenue's interference under Section 34(1). In other words, only when the Board of Revenue passes a positive order in exercise of its suo motu powers of revision under that section interfering with the orders of the authorities enumerated therein, it would be passing an order under Section 34(1) of the Act. When the Board merely intimates a party like the petitioners that it does not intend to exercise its suo motu powers of revision by interfering with the orders of the authorities mentioned in that section, such intimation itself will not constitute an order under Section 34(1) of the Act. In this particular case, as we have pointed out already, the Board of Revenue declined to interfere with the assessment originally made, but merely gave some relief in respect of the rate of tax. Obviously, the petitioners are not aggrieved by the reduction of the rate of tax made by the Board of Revenue and arc aggrieved only by the proceedings of the Board of Revenue declining to interfere with the order of assessment. The proceedings of the Board of Revenue declining to interfere, not being an order passed by the Board under Section 34(1) of the Act so as to attract the appellate jurisdiction of this court under Section 37 of the Act, we are of the opinion that the appeal itself is not maintainable and, therefore, the same is dismissed on that basis. There will be no order as to costs.


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