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TMI Blog1962 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of the turnover in dispute is 1952-53. By an order dated March 27, 1954, the Deputy Commercial Tax Officer, Kozhikode, imposed sales tax on the respondent on a net turnover of Rs. 12,56,178-14-0 and the appeal taken against that order to the Commercial Tax Officer was dismissed. On March 15, 1956, a notice was issued by the Deputy Commissioner of Commercial Taxes against the assessee proposing to determine the escaped turnover for the period of assessment. By an order dated March 31, 1956, the Deputy Commissioner determined the revised turnover. An appeal was taken against that order to the Sales Tax Appellate Tribunal, Trivandrum, but that appeal was dismissed on March 23, 1957. Against that order a revision was taken to the Kerala High Court and by its judgment dated September 25, 1958, the High Court set aside the order of the Deputy Commissioner on the ground that the notice issued by the Deputy Commissioner of Commercial Taxes was without jurisdiction and the order of the Appellate Tribunal was therefore erroneous. Another question which had been raised before the High Court that the rule under which the Deputy Commissioner purported to act was ultra vires o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit." Section 12-A provides for appeals to the Appellate Tribunal and section 12-B for revision to the High Court. Section 19 gives power to the Government to make rules and the relevant provisions of that section are 19(1) and 19(2)(f). They are as under: "19. (1) The State Government may make rules to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for- (f) the assessment to tax under this Act of any turnover which has escaped assessment, and the period within which such assessment may be made, not exceeding three years." Under the rule making power conferred by section 19 rules have been framed and we are concerned in this appeal with rules 17(1), 17(1-A) and 17(3-A). They read as under: "17. (1) If for any reason the wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner and the power to assess escaped turnover is merely incidental to the power of revision and may be exercised only when revisional jurisdiction under section 12(2) is invoked under that section and the record is sent for suo motu or on application and the legality or propriety of the order made by the subordinate officer is scrutinized. Therefore the Deputy Commissioner was not in the absence of any substantive proceeding for exercise of revisional powers competent to assess escaped turnover. But the power to assess escaped turnover does not arise out of the revisional jurisdiction. In exercising revisional jurisdiction the Deputy Commissioner would be restricted to the examination of the record for determining whether the order of assessment was according to law. Rule 17 confers power to assess escaped turnover which may normally be exercised on matters de hors the record of assessment proceedings before the Deputy Commercial Tax Officer. It is true that the substantive provisions of the Act do not expressly deal with the power and procedure for assessment of escaped turnover. The Legislature has left it to be dealt with by statutory rules to be framed under section 19, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case after an appeal to the Commercial Tax Officer there was no further proceeding and therefore the Deputy Commissioner who is the revising authority acted under rule 17(3-A) and issued a notice which, according to that sub-rule, he had power to issue and then determined the escaped turnover. We have already held that rule 17 is a valid rule under section 19 of the Act. Sub-rule (3-A) of rule 17 on its plain construction confers jurisdiction on the revising authority to issue the notice which it did issue and, in our opinion, and we say so with respect, the judgment of the High Court is to that extent, erroneous and it cannot be said that the notice was without jurisdiction. Therefore the impugned order was not incorrect. The respondent then argued that rule 17 is ultra vires of the pro- visions of the Act and he put his argument like this; that the power to assess is given to the assessing authority under section 9(1) and (2) which has been quoted above. The assessing authority is defined in section 2(a-2) to mean any person authorised by the State to make any assessment under this Act. Therefore the assessment of escaped turn- over can only be done, if at all, by an "ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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