TMI Blog1998 (11) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Appeal No. 7222, Civil Appeal No. 7223, Civil Appeal No. 8273, Civil Appeal No. 9180 of 1995, Civil Appeal No. 5666, Civil Appeal No. 5667, Civil Appeal No. 5668, Civil Appeal No. 5669, Civil Appeal No. 5670, Civil Appeal No. 5671, Civil Appeal No. 5672, Civil Appeal No. 5673, Civil Appeal No. 5674, Civil Appeal No. 5675 of 1998, Civil Appeal No. 4155 T.L. Viswanatha Iyer, Senior Advocate (R.N. Keshwani and S. Prasad.Advocates, with him), for the respondents in C.A. No. 4112, etc. of 1994. Joseph Vellapally, M.L. Verma and Raju Ramachandran, senior Advocates (M.T. George, B.B. sawhney, Ms. Indira Sawhney, Roy Abraham, C.K. Sasi, Ms. Baby Krishnan, M.K.D. Namboodiri, Ramesh Babu, N. Sudhakaran, C.K. Sreekumar, S. Balakrishnan, V.J. Francis, P.N. Ramalingam, K.R. Nambiar and M.A. Firoz, Advocates, with them), for the respondents in other appeals. K.N. Bhatt, Additional Solicitor-General (R. Sasi Prabhu, G. Prakash and Ms. Bina Prakash, Advocate with him), for the appellants in all the appeals. -------------------------------------------------- The judgment of the Court was delivered by B.N. KIRPAL, J.- Leave granted. Delay condoned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was received was to the following effect: "No. OS 2661/85/TX/Ldis. Office of the Board of Revenue (Taxes) Trivandrum-1, dated 31-1-1985 From The Secretary, Board of Revenue (Taxes), Trivandrum. To M/s. Parry Company Ltd., "Dare House", Post Box No. 12, Madras-600 001. Gentleman, Sub: Taxes-Sales tax rate of tax on Horlicks, etc. Ref: Your letter dated 11-12-1984 The case at issue has already been examined previously and Government in G.O. Rt. 314/84/TD dt. 23-4-1984 have clarified that Horlicks would come under entry 6 of the First Schedule to the Kerala General Sales Tax Act, 1963. Yours faithfully, Sd/- [Secretary (Taxes)]." 5.. It is in view of such decisions taken by the State Government in determining the entries under which different items would fall, in exercise of its power under section 59A of the Act, that the respondents in these appeals filed different writ petitions in the Kerala High Court challenging the constitutional validity of section 59A. The main contention of the dealers was that section 59A gave the Government arbitrary and unguided power in determining the rate of tax applicable to different items and, further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to the higher authorities. Chapter IV deals with assessment, collection and levy of tax. Section 17 contains the procedure which is to be followed by the assessing authority. If the assessing authority does not accept the return as submitted by the dealer then he is under an obligation to give a reasonable opportunity to the dealer of being heard before finalising the assessment. In the event of the dealer being aggrieved by the assessment order so passed Chapter VII contains provisions for appeals and revisions. Appeal to the Appellate Assistant Commissioner is filed under section 34; section 36 gives the power to the Deputy Commissioner to revise an order on an application being made and power of revision is also given to the Board of Revenue under section 38 of the Act. Section 39 is a provision which provides for appeal to the Appellate Tribunals against certain orders. Section 40 enables an appeal to be filed to the High Court by any person objecting to an order affecting him which was passed by the Board of Revenue under section 37, while section 41 gives a person right to file a revision in the High Court from an order passed by the Tribunal under section 39 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n may even attempt to override the appellate or the revisional power exercised by the High Court under section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and the dealer. 13.. We are unable to agree with the submission of Mr. Bhatt that the section furnishes a limitation subject to which the power can be exercised. The section does not contain any guidelines as to at what stage the power can be exercised and nor does the exercise of such a power make it amenable to the appellate or revisional provisions provided by the Act. It is no doubt true that in certain enactments of other States the Government has the power but such power is not unbridled. For example under section 49 of the Delhi Sales Tax Act, 1975, power has been given to the Commissioner of Sales Tax to determine certain disputed questions. The said section reads as under: "49. Determination of disputed questions-(1) If any question arises, otherwise than in proceedings before a court, or before the Commissioner has commenced assessment or reassessment or a d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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