TMI Blog1977 (6) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... 1966. The assessee filed petitions for rectification under section 55 of the Tamil Nadu General Sales Tax Act for the assessment years 1953-54 to 1962-63 on 15th June, 1966, and 23rd June, 1966. The assessing authority summarily rejected the petitions on 10th May, 1967. The assessee took also proceedings under section 33 of the Act before the Deputy Commissioner seeking refund of the tax collected. The Deputy Commissioner negatived the prayer on 8th January, 1967. The assessee again filed another petition to the Deputy Commissioner to exercise the suo motu powers of revision vested in him under section 32 of the Act on 26th July, 1967. The Deputy Commissioner rejected this petition by an order received by the assessee on 19th February, 1968. Thereafter, the assessee preferred an appeal to the Appellate Assistant Commissioner on 13th March, 1968, against the order of the assessing officer rejecting the application made under section 55 of the Act by order dated 10th May, 1967. On 5th April, 1968, the Appellate Assistant Commissioner dismissed the appeal as time-barred. There was a further appeal to the Tribunal which proved unsuccessful. Neither the Appellate Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner." When the matter went back before the Deputy Commissioner as a result of the said order on the writ petition, the Deputy Commissioner passed an order on 30th May, 1973. He pointed out that the levy and collection of tax on the inter-State or import purchase of cotton was either due to the absence of the claim by the assessee, or because of the interpretation of law as it was then understood. According to the Deputy Commissioner, it was well-settled that an assessee could not reopen and reagitate the sustainability or otherwise of an assessment which had become final long ago by his default to take appropriate proceedings statutorily available to him, taking advantage of subsequent judicial pronouncements favourable to him. As the assessee had not availed itself of the effective remedy of appeal under the Act in respect of the assessment year 1960-61, the Deputy Commissioner held that the assessee could not invoke the revisional jurisdiction under section 32 of the Act. Against the said order rejecting the petition to invoke jurisdiction under section 32, the assessee filed an appeal before the Sales Tax Appellate Tribunal. The Tribunal disposed of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed or proceeding recorded by the appropriate authority under the specified provisions and may make such inquiry or cause such inquiry to be made and, subject to the provisions of the Act, may pass such order thereon as he thinks fit. Clause (c) of sub-section (2) of section 32 provides that the Deputy Commissioner shall not pass any order under sub-section (1) if more than four years had expired after the passing of the order. The time-limit was enlarged to "five" years by Act 31 of 1972 with effect from 1st December, 1972. As the application of the assessee had been made on 26th July, 1967, the law that was then in force provided only for a period of four years, within which the revisional power could have been exercised by the Deputy Commissioner. The petition invoking the jurisdiction under section 32 had already been filed on 26th July, 1967, which fell within the period of four years provided in the section. Therefore, as far as the assessee was concerned, it had acted within time. The time-limit would have expired by 30th December, 1967. As the assessee had filed the application in July, 1967, the Deputy Commissioner had five long months within which he could have exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order beyond the period prescribed in section 132(5) of the Act. The High Court accepted this plea and set aside the order. This decision of the High Court was carried on appeal to the Supreme Court. The Supreme Court held that an order made in pursuance of a direction given under section 132(12) or by a court in writ proceedings was not subject to the limitations prescribed under section 132(5). It was pointed out at page 395: "To hold otherwise would make the powers of courts under article 226 wholly ineffective." Under section 32 itself, a case arose in Deputy Commissioner of Commercial Taxes v. Abdule Shukoor Co.[1977] 39 S.T.C. 137. In that case, the Deputy Commercial Tax Officer held that the entire turnover of the assessee was exempt from taxation and made an Order on 13th June, 1958. Subsequent to that order the Supreme Court reversing a decision of this court held that unlicensed dealers in hides and skins were liable to be taxed at multi-point on their purchase turnover. The Deputy Commissioner invoking his powers under section 32 issued a notice to the assessees calling upon them to show cause why the taxable turnover should not be revised including the entire turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner refused to exercise his powers of revision under section 32, solely on the ground that the assessee had not been diligent in preferring an appeal. Against the order of the Deputy Commissioner, there was an appeal to the Tribunal. The Tribunal set aside the order of the Deputy Commissioner and directed him to dispose of the petition filed by the assessee in accordance with law, on the assumption that the dismissal of the petition by the Deputy Commissioner was on the ground that the petition was belated. On revision, it was held by this court that the Tribunal was wrong in proceeding on the basis that the Deputy Commissioner dismissed the application preferred by the assessee on the ground that it was belated. There was another contention taken before this court that the assessee not having filed any appeal against the assessment, the powers of revision could not be invoked by the Deputy Commissioner. This court pointed out that the Deputy Commissioner could not refuse to exercise his discretion solely on the ground that the assessee had not been diligent enough to prefer an appeal, because if an appeal had been filed there would not have been any occasion for the assessee to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnover be not levied against them. In response to this notice, the assessees challenged the jurisdiction of the Deputy Commissioner to levy the proposed penalty and, in the alternative, prayed that a certain sum representing works contracts should not have been included in the assessment. The assessees had not brought to the notice of the assessing authority that the turnover related to works contracts so as to be exempt from liability to tax. No appeal had also been preferred against the assessment. The Deputy Commissioner did not accede to the alternative prayer of the assessees that the turnover could not have been taxed. The Appellate Tribunal, on appeal against the order of the Deputy Commissioner, allowed the assessees' claim. But this court reversed the order of the Appellate Tribunal in so far as it related to the assessees' claim for exemption. On further appeal, the Supreme Court held that the suo motu power conferred on the Deputy Commissioner under section 32 was quite wide and that he could, subject to the conditions laid down in sub-sections (2) and (3), exercise the same even at the instance of an assessee who had not filed an appeal against the order for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6., that works contracts did not involve any element of sale of materials and the levy of sales tax thereon was unlawful. This ruling was affirmed by this court in State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd.[1958] 9 S.T.C. 353 (S.C.). We are, therefore, of the view that the Deputy Commissioner rightly refused to exercise his revisional jurisdiction in favour of the appellants and the High Court was right in reversing the order of the Appellate Tribunal in so far as it related to the appellants' claim to the aforesaid exemption." The learned Additional Government Pleader referred us to the fact that in the case before the Supreme Court also the assessee not having filed an appeal was relied on in support of the conclusion that the Deputy Commissioner rightly refused to exercise his revisional jurisdiction. The Supreme Court, it must be remembered, was concerned with a case where the assessee did not have any objection to the assessment right up to the stage of the revision proceedings taken by the Deputy Commissioner. It was only as a half-hearted attempt-if, we may say so, as a kind of bargain-that the assessee wanted the legality of the assessment itself to be gone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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