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TMI Blog1971 (9) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... going to the facts of the case. The assessing officer as well as the Appellate Assistant Commissioner of Commercial Taxes disallowed the two exemptions asked for by the assessee on the ground that there was interpolation in the relative documents covering the turnover. The Tribunal reversed that finding of those authorities and allowed the exemptions asked for. It appears from the order of the Tribunal that it proceeded on the basis that there was no interpolation. This finding of the Tribunal is essentially a finding of fact and hence we will not be justified in interfering with that finding and more so as the High Court has declined to interfere with that finding. This takes us to the real controversy in the appeal, namely, whether the Appellate Assistant Commissioner had power to enhance the assessment of the assessee. The assessee is a dealer in hides and skins at Madras. We are concerned herein with its assessment for the year 1958-59. That assessment was made on March 24, 1961. By his order dated August 16, 1962, the Appellate Assistant Commissioner enhanced the assessment of the assessee while disposing of the appeal filed by the assessee. Until March 31, 1959, sales tax w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the proposed enhancement. The Appellate Assistant Commissioner rejected the contention of the assessee that he had no power to enhance the assessment as the power to enhance assessment conferred on him by section 31 of the 1959 Act was inapplicable to the proceedings before him. We shall now examine the relevant provisions of the 1939 Act and the 1959 Act. We shall first take up the material provisions in the 1939 Act. Section 2(a-2) defines the expression "assessing authority" as meaning any person authorised by the State Government to make any assessment under the Act. The expression "Commercial Tax Officer" is defined in section 2(a-3) as meaning any person appointed to be a Commercial Tax Officer under section 2-B. The Deputy Commissioner is defined in section 2(b-1) as meaning any person appointed to be a Deputy Commissioner of Commercial Taxes under section 2-B. Section 2-B empowers the State Government to make appointments of as many Deputy Commissioners of Commercial Taxes and Commercial Tax Officers as they think fit for the purpose of performing the functions respectively conferred on them by or under the Act. The expression "Appellate Tribunal" is defined in sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as the Deputy Commissioner were conferred with power to move the High Court under section 12-B within the prescribed period against the order of the Appellate Tribunal on the ground that that order either decided erroneously a question of law or it failed to decide the question of law arising for decision. This takes us to the relevant provisions in the 1959 Act. Therein again "the assessing authority" is defined in section 2(c) as meaning any person authorised by the Government or by any authority empowered by them to make assessment under the Act. Against the order of assessment made by the assessing authority an appeal by any person objecting to the assessment lies to the Appellate Assistant Commissioner appointed under section 28, sub-section (3). Section 31 empowers the Appellate Assistant Commissioner to confirm, reduce, enhance or annul the assessment. The power to enhance the assessment was conferred on the appellate authority for the first time by the 1959 Act. Under this Act also the Deputy Commissioner's power to suo motu revise the order of assessment is retained, subject to certain conditions. Any person objecting to the order made by the Appellate Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959 Act relating to the determination of the assessment are more onerous than those in the 1939 Act. The 1959 Act in our opinion merely simplified the procedure without touching the substance of the right of the parties. No benefit that was available to an assessee as regards the procedure was taken away by the 1959 Act, if we ignore the remote possibility of an appeal pending before an Appellate Assistant Commissioner for more than three years and that authority failing to exercise his power to enhance the tax within that period. The assessee before us cannot even have the benefit of such a contingency because the order of assessment in this case was made on March 24, 1961, and the appellate order was passed on August 16, 1962. In this case it cannot be said that any vested right of the assessee had been in fact affected by the 1959 Act. Now we shall go to section 61 of the 1959 Act on the basis of which the Tribunal and the High Court have upheld the contention of the assessee. Section 61(1) to the extent material for our purpose reads: "61. (1)(i) The Madras General Sales Tax Act, 1939 (Madras Act IX of 1939) (hereinafter in this section referred to as the said Act), is her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing authority in the case of dealers whose turnover does not exceed Rs. 20,000 and Deputy Commercial Tax Officers to exercise the powers of an assessing authority in the case of dealers whose turnover exceeds Rs. 20,000. It is not necessary to refer to the exceptional cases for which provision is made in the provisos to clause (1) of that order. Rule 13(1) of the Rules prescribed that subject to the provisions of section 11, any person aggrieved by any original order of an assessing authority may appeal to the Commercial Tax Officer of the District. The proviso to that section permits the Board of Revenue to transfer an appeal pending before a Commercial Tax Officer to another Commercial Tax Officer for reasons to be recorded in writing. But the usual appellate authority is the Commercial Tax Officer of the District. Hence the Commercial Tax Officer had both the powers of the appellate authority as well as the special powers conferred on him under section 12(1) of the 1939 Act. By the exercise of those two powers, he could have confirmed, altered, amended or enhanced the assessment made. The power conferred on the appellate authority under the 1959 Act is not wider than that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to the Appellate Tribunal. In the course of the hearing of the appeal by the Tribunal, the State representative filed a petition seeking enhancement of the turnover of the assessee on certain grounds The Tribunal rejected that plea holding that the assessee had a vested right to have his appeal disposed of under the provisions of the 1939 Act. It may be noted that under the 1939 Act, only an assessee could have appealed to the Tribunal against the order of the Appellate Assistant Commissioner, but under the 1959 Act both the assessee as well as the Deputy Commissioner can appeal against his order. Aggrieved by the order of the Tribunal, the Deputy Commissioner took up the matter in revision to the High Court. The High Court allowed the revision petition. It held that the Tribunal went wrong in holding that the petition filed by the State representative for enhancement of the assessment was not maintainable. In the course of its Judgment the High Court observed: "The immunity or protection which the assessee had under the 1939 Act so as to save the assessment made by the Deputy Commercial Tax Officer, the primary assessing authority, from being enhanced by the exercise of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities. This takes us to the decision in Balasundaram & Co.'s case [1963] 14 S.T.C. 996. . This case was decided by the same Bench which decided Swami & Co.'s case[1962] 13 S.T.C. 468. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the course of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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