TMI Blog1959 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... such evidence. 3.. The Sales Tax Appellate Tribunal, Madras, decided that he had no such power by a common order dated 10th October, 1956. It said: "On the preliminary point urged by the learned counsel for the appellants, we hold that in the cases before us, the revisional authority acted in excess of his jurisdiction under section 12(2)(i) of the Act in having directed the gathering of additional evidence by an authority subordinate to him and in proceeding to effect a revision on the basis of evidence so gathered. Therefore his order is liable to be set aside." 4.. The Deputy Commissioner has preferred these petitions under section 12-B(1) of the Madras General Sales Tax Act, 1939. He challenges the correctness of the conclusion reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to him to go beyond the order or the record and act upon further information or evidence placed before him so as to disturb the order originally passed and hold that it was not proper": Louis Dreyfus and Company Ltd. v. The Province of Madras[1952] 3 S.T.C. 19, Headnote, paragraph 2. 7.. There was an appeal from the decision above-mentioned. In dealing with certain questions of law referred to a Full Bench, Rajamannar, C.J., said: "Now what exactly is the meaning to be attached to the expression 'the record of any order passed'. The records which the revising authority calls for are the records of the assessment. They would include the assessment order as well as the other files of the assessing authority which would furnish the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler, the appellate or revising authority shall before passing orders, determine the correct amount of tax payable by the dealer after issuing a notice to the dealer and after making such enquiry as such appellate or revising authority considers necessary." It is not disputed that this rule will justify the action taken. The contention of the respondents is that the rule should be considered as ultra vires, and that it would not be allowed to form the foundation of a valid revision under the Act. 10.. Section 19 of the Act deals with the power to make rules. According to the learned Government Pleader sub-sections (1) and (5) and certain portions of sub-section (2) of that section will sustain a rule like rule 14-A. The portions of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.. The matter came to a capital test in Yaffe's case[1931] A.C. 494. Allen summarises the effect of that case as follows: "Whereas previously there were dicta of the House of Lords in favour of the absoluteness of the clause, there are now countervailing dicta in favour of its limitation. It is still impossible, therefore, to state the law in this matter positively; but at least it can be said that the main current of judicial opinion in the superior courts in Yaffe's case(2) is against Lord Herschell's theory, for reasons which are perhaps best stated by Viscount Dunedin. The confirmation makes the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it is contained is the Act which provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the record of any order passed or proceeding recorded under the provisions of the Act. This must imply by necessary intendment a prohibition to the collection of fresh evidence and revisional orders on the basis of such evidence. 16.. The learned Government Pleader emphasised the words "may pass such order with respect thereto as he thinks fit". These words do spell a very wide discretion. But the orders passed in the exercise of that wide discretion will still have to be based on the records mentioned in the sub-section, and nothing else. 17.. The validity of rule 14-A did not arise for consideration in the decisions mentioned in this judgment or in State of Madras v. Madura Knitting Co. Ltd.[1959] 10 S.T.C. 155., to which also o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of gold or woman, if proved to be the cause of the order, will not only entail the cancellation of the order but also the dismissal of the Deputy Commercial Tax Officer who passed it." 18.. In the view we have taken, namely, that section 12(2) confines the revising authority to the record, and that rule 14-A in so far as it permits a wider ambit is ultra vires of the provisions of section 12(2), these petitions have to be dismissed, and we decide accordingly. The respondents will have their costs from the petitioner. Advocate's fee Rs. 100 in each of the three cases. 19.. The validity of rule 14-A in respect of appeals under section 11 does not arise for consideration in this case, and no arguments were advanced on that matter. Nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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