Skip to content


The India Cements Limited Vs. Deputy Commissioner of Commercial Taxes - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 396 of 1969 (Revision No. 271 of 1969)
Judge
Reported in[1973]30STC516(Mad)
AppellantThe India Cements Limited
RespondentDeputy Commissioner of Commercial Taxes
Appellant Advocate T.N.C. Rangarajan, Adv. of ;King and ;Partridge
Respondent Advocate K. Venkataswami, the First Assistant Government Pleader
DispositionPetition dismissed
Cases ReferredHaji Abdul Shukoor v. State of Madras
Excerpt:
- .....tamil nadu general sales tax act, 1959 (hereinafter called the act), to revise the order of the sales tax appellate tribunal, madurai, dated 26th december, 1968. the petitioners' firm were assessed to central sales tax by an order dated 30th november, 1961, on the following turnover : rs. 15,64,228.74 at one per cent., rs. 11,89,148.49 at five per cent. these figures were arrived at after taking into consideration that for an amount of rs. 4,65,258.02, d forms were produced along with the assessees' reply to the pre-assessment notice issued to them. but this amount included a sum of rs. 6,502.28 which represented the sales tax collected by the assessee. on noticing this mistake, the assessing officer, namely, the commercial tax officer, tirunelveli, issued a notice to the petitioners.....
Judgment:

V. Ramaswami, J.

1. This is a petition under Section 38 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter called the Act), to revise the order of the Sales Tax Appellate Tribunal, Madurai, dated 26th December, 1968. The petitioners' firm were assessed to Central sales tax by an order dated 30th November, 1961, on the following turnover : Rs. 15,64,228.74 at one per cent., Rs. 11,89,148.49 at five per cent. These figures were arrived at after taking into consideration that for an amount of Rs. 4,65,258.02, D forms were produced along with the assessees' reply to the pre-assessment notice issued to them. But this amount included a sum of Rs. 6,502.28 which represented the sales tax collected by the assessee. On noticing this mistake, the assessing officer, namely, the Commercial Tax Officer, Tirunelveli, issued a notice to the petitioners on 29th December, 1961, under Rule 5(9) of the Central Sales Tax (Madras) Rules, 1957, proposing to deduct a sum of Rs. 6,502.28 from the turnover taxable at one per cent, and add the same amount to the turnover taxable, at five per cent. In the meantime, the petitioners by their letter dated 26th December, 1961, intimated the assessing authority that a turnover of Rs. 5,696.40 was covered by C forms and that this fact has not been taken into consideration while arriving at the assessable turnover. They also sent on 9th January, 1962, a reply to the notice dated 29th December, 1961, and again requested the assessing authority to take into account this sum of Rs. 5,696.40 covered by C forms. The assessing authority, finding that the turnover of Rs. 5,696.40 was covered by C forms and also that the sum of Rs. 6,502.28 was liable to be deducted from the turnover taxable at one per cent, and to be included in the turnover taxable at five per cent., revised the assessment accordingly and passed a revised assessment order on 29th January, 1962. The result of this order was that the tax due was increased by a sum of Rs. 34.99. This revised order and a demand notice was served on the petitioners on 10th February, 1962. The petitioners filed an appeal to the Appellate Assistant Commissioner against the revised order dated 29th January, 1962.

2. In the appeal, while not disputing the inclusion of the sum of Rs. 6,502.28 in the turnover taxable at five per cent., the petitioners raised three fresh grounds relating to a total turnover of Rs. 95,204.36, taxable at five per cent. They filed an additional ground on 2nd May, 1962, disputing another turnover of Rs. 1,94,449.05 taxed at 5 per cent, as being covered with D forms. The Appellate Assistant Commissioner gave relief to an extent of Rs. 90,504.37 out of the disputed turnover of Rs. 95,204.36 and rejected the turnover disputed in the additional grounds. The petitioners filed a further appeal to the Sales Tax Appellate Tribunal, Madurai. The Tribunal held that no appeal lay against the revised order passed to the Appellate Assistant Commissioner and that, therefore, the order of the Appellate Assistant Commissioner was without jurisdiction and null and void. Accordingly, the appeal filed before the Tribunal was dismissed as not maintainable.

3. In this revision petition, the learned codnsel for the petitioners contended that an appeal lay to the Appellate Assistant Commissioner against the revised assessment order dated 29th January, 1962, and that the view of the Tribunal that the appeal was without jurisdiction and, therefore, null and void, is not correct.

4. In view of Section 9(3) of the Central Sales Tax Act, 1956, the authorities for the time being empowered to assess, collect and enforce payment of any tax under the Tamil Nadu General Sales Tax Act, shall be the authorities to assess, collect and enforce payment of any tax by a dealer under the Central Sales Tax Act and the assessment, collection and enforcement shall be in the same manner as the tax on the sale or purchase of goods under the Tamil Nadu General Sales Tax Act is assessed, paid and collected. The provisions in the Tamil Nadu General Sales Tax Act and the Rules framed thereunder relating to returns, appeals, reviews, revisions, references, penalties and compounding of. offences shall apply to these proceedings. Therefore, though rule. 5(9) of the Central Sales Tax (Madras) Rules authorises the rectification of mistakes in the assessment orders, the substantive power to rectify mistakes is only found in Section 55 of the Tamil Nadu General Sales Tax Act. In Section 31 of the Tamil Nadu General Sales Tax Act which deals with the orders that are appealable to the Appellate Assistant Commissioner, orders under Section 55 are not specifically referred to as appealable. On this ground, the Tribunal held that no appeal lay against an order made under Section 55(3). But, we are of opinion that in proceedings initiated under Rule 5(9) read with Section 55(3) of the Act, in respect of the revised turnover and the enhanced tax assessed thereon, the order passed would be an assessment order falling under Section 12 of the Act. Sub-clause (3) of Section 55 provides that where any such rectification has the effect of enhancing an assessment or penalty, the assessing authority shall give the dealer a revised notice of assessment or penalty and thereupon the provisions of the Act and the Rules made thereunder shall apply as if such notice had been given in the first instance. The authority competent to issue the notice under this section is the original assessing authority. The procedure to be followed by such authority shall also be the procedure that would be applicable if such notice had been given in the first instance. There could, therefore, be no doubt that where an action is taken under Rule 5(9) read with Section 55(3), an order passed thereon would be an assessment order falling under Section 12 and an appeal would lie under Section 31 of the Act. A similar view was also expressed by a Division Bench of this court in Haji Abdul Shukoor v. State of Madras [1965] 16 S.T.C. 808. We may add that we are only concerned with a case falling under Section 55(3). Whether an appeal will lie against an order falling under Section 55(2) does not arise for consideration in this case.

5. But we do not agree with the learned counsel for the petitioners that the subject-matter of the appeal before the Appellate Assistant Commissioner was the entire turnover including the turnover which was originally assessed. So far as the original turnover assessed is concerned, an appeal lay to the Appellate Assistant Commissioner under Section 31, and no appeal having been filed, that order had become final. The subject-matter of the proceedings under Section 55(3) was only on a turnover of Rs. 6,502.28 and that alone could have formed the subject-matter of the revised order, against which an appeal could be filed under Section 31. We are, therefore, of opinion that an appeal lies to the Appellate Assistant Commissioner against an order enhancing the assessment or penalty under Rule 5(9) of the Central Sales Tax (Madras) Rules, 1957, read with Section 55(3) of the Act, in so far as it related to the enhancement of the assessment or penalty. Since the appeal before the Appellate Assistant Commissioner related to a turnover which was the subject-matter of the original assessment and not the revised assessment, it was not competent.

6. The learned counsel for the petitioners next contended that the appeal filed to the Appellate Assistant Commissioner on 6th March, 1967, shall be deemed to have been an appeal against the original order dated 30th November, 1961, and since the Appellate Assistant Commissioner noted in his order that the appeal was in time, the Appellate Assistant Commissioner shall be deemed to have excused the delay in filing the appeal against the original assessment order itself. This contention is clearly untenable. In the memorandum of grounds filed by the petitioners before the Appellate Assistant Commissioner, it was stated that the appeal is filed against the order dated 29th January, 1962, which was received by the petitioners on 10th February, 1962. It has not been stated that the appeal is also filed against the original order dated 30th November, 1961. Further, under Section 31 of the Act, the Appellate Assistant Commissioner might admit an appeal presented after expiration of the said period if he was satisfied that the appellant had sufficient cause for not presenting the appeal within the prescribed time. In the grounds of appeal before the Appellate Assistant Commissioner, the petitioners have not set out any reasons as to why they could not prefer an appeal against the original order of assessment in time. The Appellate Assistant Commissioner, therefore, could not have exercised his mind as to whether there was sufficient cause for not preferring the appeal in time. What the Appellate Assistant Commissioner noted was that the appeal presented against the revised order was in time. It might be that in view of the notice of rectification issued on 29th December, 1961, itself, which was prior to the expiry of the period prescribed for appeal against the order dated 30th November, 1961, the petitioners had sufficient cause for not filing the appeal. But neither did they specifically seek to file an appeal against the original order of assessment nor did they ask for excusing the delay in filing the appeal against the original assessment order. The petitioners were, therefore, not entitled to dispute the turnover assessed in the original assessment order in the appeal filed by them against the revised assessment order.

7. The revision petition, therefore, fails and it is dismissed with costs. Counsel's fee Rs. 150.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //