TMI Blog1959 (4) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Commercial Taxes raising contentions questioning the jurisdiction of that officer to pursue the course adopted by him, they have filed these petitions for directions to prohibit the authorities from holding the proposed enquiry in pursuance of the notices in question. In support of these petitions, it is urged by the counsel for the petitioners that what the Deputy Commissioner purports to do is to assess the escaped turnover which he is not competent to do as he is not an "assessing authority" and secondly since the Madras General Sales Tax Act under which the assessment for the relevant accounting year was made had been repealed, it was not competent for the Department to reopen it as the proviso to section 41 of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the Act) does not save it. As the main point debated centres round rule 31, it is convenient to read it here. Rule 31, so far as it is material for the purpose of this enquiry, runs as follows: "31. (1) If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to tax or has been under-assessed in any year or if the licence fee has escape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y assessment under this Act. So the Act itself does not prescribe the assessing authority but leaves it to the State Government to make the appointment. In exercise of this power, the Andhra Pradesh Government issued a notification appointing Assistant Commercial Tax Officers, Deputy Commercial Tax Officers and Commercial Tax Officers to exercise the powers of an "assessing authority", the jurisdiction of each depending upon the quantum of turnover to be dealt with by them. It is seen that the Deputy Commissioner of Commercial Taxes is not one of those included in the hierarchy of officials who are to assess the tax. He is only constituted as an appellate or revisional authority as could be seen from rule 33 of the Andhra Pradesh General Sales Tax Rules and from section 20(2) of the Act. We will now turn to section 14(4) of the Act, which contains a provision parallel to that underlying rule 31(1) and 31(4) extracted above. Sub-section (4) of section 14, omitting the unnecessary portion, runs as follows: "Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, or has been underassessed or assessed at too low a rate, or w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a power being implicit in the power to enhance the assessment. We are unable to subscribe to this proposition. The authority to enhance the assessment cannot comprehend an authority to effect a re-assessment. That only connotes that an appellate authority can increase the assessment by way of correcting the original order and cannot convey the idea of reopening the assessment. Sub-clause (a) only empowers the proper Tribunal to correct the order of the assessing authority, i.e., he can revise the ultimate computation arrived at by the proper officer. Since the Government Pleader next falls back upon section 20 of the Act, it is useful to extract it here: "(1) The Board of Revenue may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section, for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit. (2) Powers of the nature referred to in sub-section (1) may also be exercised by the Deputy Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in consonance with this view. Section 64-A of the Motor Vehicles Act is in pari materia with this provision of law in question. The only difference between the two provisions is that under the Motor Vehicles Act an order could be revised on the ground of illegality, irregularity or impropriety, whereas under the General Sales Tax Act, only the legality or the propriety of an order could be questioned. It was laid down by Subba Rao, C.J., who delivered the opinion of the Court, that the section either expressly or by necessary implication did not empower the Government to travel beyond the record. We express our respectful accord with the rule stated in those cases. The language of the section does not lend itself to the interpretation that is sought to be placed upon it by the learned Government Pleader. The section itself sets certain limitations within which that power should be exercised. The revising authority could correct an order of assessment only in the light of the material that was available to the assessing authority. But rule 31(5) vests much wider power in the appellate or revising authority, i.e., all the powers which could be exercised originally by any of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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