TMI Blog1962 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ate and independent jurisdiction in regard to the determining and taxing escaped turnovers. The provisions of section 12(2) are in no way in conflict with the powers conferred under rule 17(1), 17(1-A) and 17(3-A). - Civil Appeal No. 621 of 1961, - - - Dated:- 11-10-1962 - KAPUR J.L. AND SHAH J.C. JJ. S.T. Desai, Senior Advocate (Dr. V.A. Syeid Muhammed, Advocate, with him), for the appellant. T.V.R. Tatachari, Advocate, for the respondent. -------------------------------------------------- The Judgment of the Court was delivered by KAPUR, J.- In this appeal by special leave against the judgment and order of the High Court of Kerala the appellant is the State of Kerala and the respondent is the assessee. The appeal arises out of proceedings under the Madras General Sales Tax Act, 1939 (Madras Act No. IX of 1939) read with the rules made under section 19 of that Act. In this judgment the former will be referred to as the Act and the latter as the rules. The area of Kozhikode was originally within the State of Madras, but by the States Reorganisation Act it was transferred to the State of Kerala. The Madras General Sales Tax Act, however, continued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed. (2) (a) If the assessing authority is satisfied that any return submitted under sub-section (1) is correct and complete, he shall assess the dealer on the basis thereof. (b) If no return is submitted by the dealer under sub-section (1) before the date prescribed or specified in that behalf or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall assess the dealer to the best of his judgment: Provided............................." Section 11 deals with appeals and section 12 with the power of the Sales Tax Authorities to pass orders in revision. One of the arguments relating to ultra vires was based on sub-section (2) of section 12 of the Act. That sub-section is as follows: "Section 12. (1) The Commercial Tax Officer may- (i).................................... (ii) .................................. (2) The Deputy Commissioner may- (i) suo motu or (ii) in respect of any order passed or proceeding recorded by the Commercial Tax Officer under sub-section (1) or any other provision of this Act and against which no appeal has been preferred to the Appellate Tribunal under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or as the case may be, by the revising authority referred to in section 12, at any time within a period of three years next succeeding that to which the tax, or as the case may be, the licence fee relates, provided that such authority shall give the dealer concerned a reasonable opportunity of being heard before passing orders under this sub-rule. " We shall first take up the question of jurisdiction raised by the appellant. The Tribunal held that the powers conferred on the Deputy Commissioner of Commercial Taxes under section 12(2) and rule 17(3-A) are distinct powers and action taken under rule 17(3-A) was not without jurisdiction. This finding was reversed by the High Court. Now section 12(2) confers on the Deputy Commissioner the power suo motu or on an application to call for and examine the record of the proceedings of any officer subordinate to the Deputy Commissioner for the purpose of satisfying himself as to the legality or propriety of such order and he can pass such order with respect thereto as he thinks fit. The respondent's argument was, and that argument was accepted by the High Court, that this provision contains the totality of the powers of the Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as contained in section 19. The first sub-rule of rule 17 provides that the assessing authority may subject to sub-rule (1-A) at any time within three years next succeeding that to which the tax relates determine the turnover which has escaped assessment and assess the tax payable on such turnover. That is the power of the assessing authority. Sub-rule (1-A) deals with those cases where an order has already been passed by the appellate authority under section 11 or by a revising authority under section 12. In those cases the assessing authority has to make a report to the appropriate appellate or revising authority and that authority can, after giving the dealer concerned reasonable opportunity of being heard, pass such orders as it thinks fit. There is then a third case and that is where there has been no appeal or revision under sections 11 and 12 of the Act and therefore no order of the appellate authority or of revisional authority as contemplated in section 12(2) of the Act and in those cases the appellate authority or the revising authority as the case may be has, under sub-rule (3-A), the same power as the assessing authority had under sub-rule (1) of rule 17. In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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