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East India Corporation Ltd. Vs. the State of Madras - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 195 of 1966 (Revision No. 141 of 1966)
Judge
Reported in[1973]31STC330(Mad)
AppellantEast India Corporation Ltd.
RespondentThe State of Madras
Appellant AdvocateC. Venkataraman, Adv.
Respondent AdvocateK. Venkataswami, First Assistant Government Pleader (Tax)
DispositionPetition dismissed
Cases ReferredMohamed Salam v. Commissioner of Commercial Taxes
Excerpt:
- .....are registered dealers under the central sales tax act, 1956. in respect of their inter-state sales in cotton the gross turnover was determined, on the basis of the monthly returns filed by the petitioners, at rs. 2,10,83,570.68 and the taxable inter-state sales at rs. 8,54,347.76, by the assessment order dated 17th july, 1961, under the central sales tax act, for the assessment year 1958-59 by the assistant commercial tax officer, madurai. the taxable turnover was also held to be taxable at one per cent. on examination of the connected records, the deputy commissioner of commercial taxes, madurai division, noticed that the turnover assessed represented only the sale value of cotton despatched by the assessee from madras state to mills in other states and in the gross turnover.....
Judgment:
ORDER

V. Ramaswami, J.

1. The petitioners are registered dealers under the Central Sales Tax Act, 1956. In respect of their inter-State sales in cotton the gross turnover was determined, on the basis of the monthly returns filed by the petitioners, at Rs. 2,10,83,570.68 and the taxable inter-State sales at Rs. 8,54,347.76, by the assessment order dated 17th July, 1961, under the Central Sales Tax Act, for the assessment year 1958-59 by the Assistant Commercial Tax Officer, Madurai. The taxable turnover was also held to be taxable at one per cent. On examination of the connected records, the Deputy Commissioner of Commercial Taxes, Madurai Division, noticed that the turnover assessed represented only the sale value of cotton despatched by the assessee from Madras State to mills in other States and in the gross turnover not assessed by the Assistant Commercial Tax Officer, a sum of Rs. 72,36,997.30 represented sales by the petitioners to the mills inside and outside Madras State of cotton purchased by them from outside dealers during the inter-State movement of the cotton. This turnover of Rs. 72,36,997.30 is divided into two heads: (1) sales turnover to mills inside the State when the goods are on the inter-State journey for the period from 1st April, 1958, to 30th September, 1953 = Rs. 66,88,723.44 ; (2) sales turnover to mills inside and outside the State when the goods are on their inter-State journey from 1st October, 1958, to 31st March, 1959 = Rs. 5,48,273.86. In respect of these transactions the sales were effected by transfer of documents during the inter-State journey of goods. The assessees (petitioners) received the sale value of the goods from the buyers and made necessary endorsements for transfer of documents of title to the goods and these activities were carried on in Madras State when the goods were on their inter-State journey. Therefore, the Deputy Commissioner, in exercise of his power under Section 9(3) of the Central Sales Tax Act read with Section 32 of the Tamil Nadu General Sales Tax Act, issued a notice on 9th October, 1964, proposing to revise the assessment and determine the taxable turnover by including the turnover in the sum of Rs. 72,36,997.30 taxable at one per cent, under the Central Sales Tax Act. The petitioners submitted their objections. After consideration of their objections, by his order dated 7th November, 1964, the Deputy Commissioner, Madurai Division, revised the turnover and refixed the taxable turnover at Rs. 80,91,345.06 by including Rs. 72,36,997.30 to the taxable turnover originally determined. The petitioners filed an appeal to the Sales Tax Appellate Tribunal, Madurai. In the appeal, the Tribunal, relying on the decision of the Supreme Court in State of Mysore v. Lakshminarasimhiah Setty & Sons [1965] 16 S.T.C. 231, held that the sum of Rs. 66,88,723.44, representing the sales turnover to mills inside the State for the period from 1st April, 1958, to 30th September, 1958, was not liable to be taxed but that the sum of Rs. 5,48,273.86, which represented the sales turnover to mills inside and outside the State when the goods were on their inter-State journey for the period from 1st October, 1958, to 31st March, 1959, are liable to tax at 1 per cent.

2. In this revision the first contention of the learned counsel for the petitioner is that the special power conferred on the Deputy Commissioner under Section 32 is 'subject to the provisions of this Act'' (Tamil Nadu General Sales Tax Act) and one of such provisions is Section 16(1)(b). Under that provision the assessment could not be revised after a period of five years from the expiry of the year to which the tax relates. In this case, the year of assessment is 1958-59 and therefore, the proceedings for revision should have been initiated on or before 31st March, 1964. Since, the notice proposing the revision was issued only on 7th October, 1964, the Deputy Commissioner had no jurisdiction to revise the assessment. Having regard to the scheme of the Act and the relative scope of Sections 16 and 32, we are unable to accept this argument of the learned counsel.

3. Section 16 deals with the turnover which has escaped assessment to tax. This Section covers within its ambit even cases where in respect of a turnover the assessing authority has considered the liability to tax and wrongly excluded it from tax, whether on the ground of erroneous view of the nature of the transaction or on a wrong understanding of the provisions of the Act or for any other reason. This is the view taken by this court in Hasheeb & Co. v. State of Madras [1966] 17 S.T.C. 38 in view of certain decisions of the Supreme Court in Maharaj Kumar v. Income-tax Commissioner : [1959]35ITR1(SC) and Maharajadhiraj Sir Kameshwar Singh v. State of Bihar : [1959]37ITR388(SC) . Taking this position as a jumping pad, the learned counsel for the petitioners wants to jump to the conclusion that when the Deputy Commissioner exercised his power under Section 32 in respect of a turnover which could be termed as a turnover which has escaped assessment to tax, he was exercising the powers of an original authority and, therefore, all the limitations placed under Section 16 would attach to his exercise of jurisdiction. The relative scope of Sections 16 and 32 was considered by a Division Bench of this Court in Hasheeb & Co. v. State of Madras [1966] 17 S.T.C. 38 and it was held therein :

If Section 32 is construed in this background we are clearly of the opinion that the power of revision of the Deputy Commissioner is a separate and independent power which can be exercised whenever he is of the opinion that the original assessing authority has committed any error of law or fact. We are unable to see any force in the contention that the mere fact that the assessing authority also has got a power to reconsider his decision by correcting his mistakes, assuming that he has got such a power, should be construed as curtailing or negativing the powers of revision expressly conferred upon the Deputy Commissioner.

4. The learned Judges also noted that if the contention that where Section 16 applies, Section 32 cannot be invoked is to be accepted, it would be impossible to conceive of any case to which Section 32 would be attracted. The learned Judges, therefore, concluded that the power of revision under Section 32 could be exercised by the Deputy Commissioner to correct errors committed by the assessing authority in his order of assessment, irrespective of the question as to whether the said errors could also be corrected by the assessing authority and that its exercise could not be controlled by any power which may inhere in the assessing authority under Section 16. The learned counsel for the petitioners was prepared to assume this position, but still contended that the limitation that the determination of the escaped turnover was to be within a period of five years from the year of assessment, would be applicable to the exercise of power under Section 32. We are of opinion, this contention cannot be accepted. Clause (c) of Sub-section (2) of Section 32 states that the Deputy Commissioner shall not pass any order under Sub-section (1) of that Section, if more than four years have expired after the passing of the assessment order which was sought to be revised under Section 32. We can conceive of a case where the period of four years lapses before the period of five years referred to under Section 16(1). Is it to be taken in such a situation that the Deputy Commissioner will have a further extended time under Section 16. If the limitation under Section 16 were to apply to the exercise of power under Section 32, Clause (c) of Sub-section (2) of Section 32 is not necessary and could not also be enforced. In our view, the power of the original authority under Section 16 and that of the Deputy Commissioner under Section 32 are independent powers and each is controlled only by the respective Sections. When exercising the power under Section 32, the Deputy Commissioner is not assessing or reassessing any escaped turnover, but revises the order of the assessing authority after examining the order passed or the proceedings recorded. It may also be noted that an order under Section 16(1) and (2) itself could be revised under Section 32 by the Deputy Commissioner.

5. The learned counsel for the petitioners then relied on the decision in Velayuiha Raja v. Board, of Revenue (C.T.) [1970] 26 S.T.C 176. In order to understand the ratio of that judgment, it is necessary to set out the relevant facts of that case. The dealer was assessed for the assessment year 1958-59 in respect of his turnover of oilengines and electric goods under Section 3(1) of the Tamil Nadu General Sales Tax Act, 1959, by the Joint Commercial Tax Officer, Madurai, by an order dated 30th November, 1959. On the basis of certain anamath accounts recovered during the surprise inspection, the assessing authority himself invoked his power under Section 16(1) and, after following the prescribed procedure, redetermined the turnover, estimated the escaped turnover at Rs. 11,052 and made a revised assessment on 18th July, 1962, by adding Rs. 11,052. It is not necessary to note the other additions made in Section 16(1) proceedings. The assessee preferred an appeal against this order under Section 16(1) to the Appellate Assistant Commissioner and succeeded in getting a deletion of the sum of Rs. 11,052 added by the assessing authority. This order in appeal was dated 23rd March, 1963. On 29th January, 1964, the Board of Revenue (C.T.), purporting to exercise their power under Section 34, issued a notice proposing to set aside the orders of the assessing authority and the appellate authority and adding a sum of Rs. 1,55,400 arrived at by best judgment assessment on the basis of an entry of Rs. 7,400 of unaccounted profit. The sum of Rs. 1,55,400 was arrived at by the Board by multiplying the said unaccounted profit of Rs. 7,400 by 21 times. After overruling the objections of the assessee, the Board passed an order on 28th December, 1965, modifying the original order of assessment and refixing the turnover assessable to tax by adding the estimated escaped turnover of Rs. 1,55,400. The main contention of the assessee before this court was that the order of the Board dated 28th December, 1965, is in the nature of an original assessment order and that, therefore, the Board has no jurisdiction under Section 34 to make that order.

6. As could be seen from the facts set out, the escaped turnover of Rs. 1,55,400 was for the first time sought to be added by the Board to the original assessment. The assessing authority who invoked his power under Section 16(1) did not include this amount in the revised assessment nor the appellate authority considered the same. The proposal to include this amount having emanated for the first time from the Board in its notice dated 29th January, 1964, the Division Bench of this Court, to which one of us was a party, accepted the argument and held that the Board's order dated 29th January, 1964, was extrovertly an original assessment and Section 34, which invests a power of revision to the Board does not enable the Board to make that order. Further at the time when the Board issued the notice dated 29th January, 1964, the assessing authority had invoked his power under Section 16 and had redetermined the turnover. That order was also the subject-matter of an appeal to the Appellate Assistant Commissioner. So the order that was before the court in that decision was the one that was made by the assessing authority under Section 16(1). In fact, it has been specifically stated so by the Bench (at page 183) in these terms :

Whatever may be said of the other Sections referred to in Section 34 the orders passed thereunder and which are susceptible to the special powers of the Board under Section 34, we are primarily concerned in this tax case with an order passed by the assessing authority under Section 16(1) of the Act.

7. In that context, the Bench held that if an order made under Section 16(1) is sought to be revised under Section 34 since Section 34 is made subject to the provisions of the Act, the same limitations which the assessing authority has when exercising the power under Section 16 will also be applicable to the exercise of the power by the Board in revision. It was further held that since the assessing authority himself could not have included the sum of Rs. 1,55,400 after the period of five years from the assessment year to which it related, the Board which was only revising the order of the assessing authority made under Section 16 cannot also include that turnover beyond the period of five years referred to therein. This decision, therefore, does not lend support to the contention of the learned counsel for the petitioners.

8. The next point that was urged by the learned counsel for the petitioners was that even after the amendment of the Central Act by the Central Sales Tax (Amendment) Act, 1969 and the Tamil Nadu General Sales Tax (Second Amendment) Act, 1969, unless the point of taxation under the Central Act and that provided under the State Act are identical, no charge will be attracted. This argument is no longer open in view of the decision of this court in Mohamed Salam v. Commissioner of Commercial Taxes [1970] 26 S.T.C. 163. Dealing with this point, the learned Chief Justice held (at page 167) :

The adoption by Section 9 of the Central Sales Tax Act and the assimilation to its purpose of the scheme of single point taxation of declared goods under the State Act has been, so to speak, reversed by the Central Ordinance and the Act which replaced it, by substituting a new Section 9 for the old Section 9, with the result that the inter-State sales attract Central tax by reason of their being so and the point of their charge has been disannexed from the one at which such sales would be chargeable under the local Act, if they were intra-State sales.

9. The Act also validates the assessments made earlier. We are, therefore, of opinion that the inter-State sales of cotton effected after 1st October, 1958, are liable to tax.

10. It was next contended by the learned counsel for the petitioners that some of the transactions have been assessed at the hands of the purchasers under the Tamil Nadu General Sales Tax Act. Apart from the fact that no evidence was produced either before the Deputy Commissioner or before the Tribunal in this regard, it is irrelevant in deciding the question whether the transactions are taxable under the Central Sales Tax Act. The Central sales tax is payable irrespective of whether it has suffered tax under the State Act or not. If tax has been levied under the State law in respect of a sale or purchase which is taxable under the Central Sales Tax Act, it may be that under Section 15(b) the dealer who paid the tax would be entitled to get a refund of the tax paid by him under the State Act. But the imposition of Central sales tax is not dependent on whether the transaction has suffered tax under the local law or not. Therefore, there is also no substance in this contention of the petitioners.

11. For the foregoing reasons, the revision petition is dismissed with costs. Counsel's fee Rs. 150.


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