TMI Blog1961 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... of the account books produced by them, held that the net turnover was Rs. 15,44,09,109-3-11. The assessee aggrieved by this order preferred an appeal before the Commercial Tax Officer, Madurai South. They contended before the appellate authority that a sum of Rs. 1,44,294-14-4 was wrongly included by the first assessing authority in the purchase value of cotton purchased by them for production of yarn as that amount only represented commission paid by them to the Comorin Investment Trading Co., Ltd., for the purchase. They further contended that another sum of Rs. 81,546-0-1, which represented sale proceeds realised by them by selling empty drums and other miscellaneous articles, were not realisations in the course of their business as they never dealt with such articles. The Commercial Tax Officer upheld their contention and excluded the sum Rs. 1,44,294-14-4 from the total turnover on the ground that the amount was commission paid by the assessee for the purchase of cotton, but negatived their contention in regard to the sum of Rs. 81,546-0-1. The view of the Commercial Tax Officer was that the sale of the empty drums and miscellaneous articles was part of the business of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribing the period of limitation and it is in these terms: "12. (4) In relation to an order of assessment passed under this Act ......... (b) the power of the Deputy Commissioner under clause (1) of sub-section (2) and that of the Board of Revenue under clause (1) of subsection (3) shall be exercisable only within a period of four years from the date on which the order was communicated to the assessee." The order of the Deputy Commercial Tax Officer making a revised assessment in pursuance of the order of the Commercial Tax Officer is dated 28th November, 1952. If the four year period of limitation is computed taking this date 28th November, 1952, as the starting point, the Board, quite obviously, acted beyond the time prescribed in commencing the revision proceedings suo motu. The order of the Deputy Commissioner of Commercial Taxes dismissing the revision petition filed by the assessee is dated 21st August, 1954. If this date can be taken to be the starting point for limitation prescribed under section 12(4)(b) the proceedings of the Board are in time. In the opinion of the Board, time has to be computed from 26th August, 1954, for the following reason: "The orders passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded under the provisions of the Act by any officer subordinate to it. If after scrutiny of the records the revising authority is not satisfied with the legality, propriety of the order of the subordinate, or the regularity of the proceeding before the subordinate, it may pass such order with respect thereto, as it thinks fit, after giving due opportunity to the assessee to show cause why an order adverse to him cannot be passed. The exercise of this power of revision can be done by the respective authorities on their own initiation acting suo motu. Upon the assessee also, has been conferred a right of revision before this hierarchy of authorities, namely, the Commercial Tax Officer, the Deputy Commissioner and the Board of Revenue. The Commercial Tax Officer can be moved by way of revision by the assessee in cases in which an appeal does not lie to him. The Deputy Commissioner can exercise revisional power at the instance of the assessee provided no appeal has been preferred by him to the Appellate Tribunal under section 12-A. The Board of Revenue can also exercise revisional jurisdiction when moved by the, assessee, but that can be done only when no appeal has been preferred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to the assessee on the questions raised by him. The fact that the record of any order passed or proceeding is before the revising authority will not clothe the authority with jurisdiction to pass an order placing the assessee in a position more unfavourable than what he occupied at the time when he preferred the revision petition. It may be that the revising authority can in the course of that very proceeding, and during the pendency of that proceeding, exercise his suo motu power of revision and pass any order that may be appropriate or proper, after giving due notice to the assessee. In the same way, in the course of proceedings started suo motu by the revising authority, the assessee cannot ask for relief except on proper application made by him to that authority but can only show cause against the proposal to enhance the assessment. The provisions of the the Act therefore make a clear demarcation regarding the scope and ambit of the revisional powers exercisable suo motu by the authorities and on application by the assessee. The subject-matter of a revision proceeding started suo motu is always the question of enhancement of assessment, while the subject-matter in a revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever be open to the Tribunal to retain or alter the assessment without increasing it by taking a correct view of the whole matter and by deleting the latter turnover and including the former in the assessable turnover." It must be noted that the learned Judges dealt with the powers of the Appellate Tribunal dealing with an appeal by the assessee. The powers of the revising authority under section 12 are of course not as comprehensive and wide as the appellate powers of the Tribunal and indeed the language of section 12 defines unmistakeably the extent of the revisional power. The limit of the revisional jurisdiction is pegged down by the words legality, propriety or regularity. It is ture that an argument was advanced before the learned Judges in State of Madras v. India Coffee Board, Batlagundu(1), on behalf of the Government that there could be no question of any merger of the order of the Commercial Tax Officer in its entirety in the judgment either of the Appellate Tribunal or that of the High Court. The decision in the case however was rested not on the ground that the order of the Appellate Tribunal extinguished the order of the Commercial Tax Officer or that the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue at New Delhi. The collector of Customs, Madras, was an authority within the territorial limits of the writ jurisdiction of this Court but the Central Board of Revenue. New Delhi, was outside such jurisdiction. In dealing with this contention, the learned Judges observed at page 50: "We agree with the learned Advocate-General's contention that the general rule is that when an order of an inferior tribunal is carried up in appeal or revision to a superior tribunal and the superior tribunal passes an order confirming, modifying or reversing the order of the inferior tribunal and a writ cannot issue from this Court to the superior tribunal because it is not situate within the territorial jurisdiction of this Court, in such a case no writ can equally issue against an inferior tribunal though situate within the jurisdiction of this Court." It may be that this principle can be founded on the doctrine that an order of an inferior tribunal gets merged into the order of the superior tribunal once the superior tribunal passed its order. It is possible to view this decision as being one upholding the principle that the Court cannot do indirectly what it cannot do directly. In Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of the authority and seek relief to have the wrongly included items excluded? In the revisional proceeding dealt with suo motu by the authority this question could not have been dealt with at all for the simple reason that it was not in the interest of revenue to do so and the assessee was incompetent to claim such relief in that proceeding. The answer to this question must obviously be in favour of the assessee. But if the theory of merger comes into play the assessee's right of revision can well be defeated by his being told that the order in revision passed by the authority in the exercise of its suo motu powers merged the order of the assessing authority and that there was no longer any order of the assessing authority subsisting and that the authority cannot revise its own order. Any such conclusion against the assessee's right of revision will be startling and be manifestly against the plain terms of the section. The scope of the revisional power is only to correct illegality or impropriety of the order of the subordinate officer and to correct the irregularity of the proceedings of such officer and that implies that portions of orders of the assessment can be modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deputy Commercial Tax Officer became merged with the order of the Deputy Commissioner, the only order which the Board can seek to revise is the order of the Deputy Commissioner. Plainly, the Board was not dissatisfied with the legality or propriety of the order of the Deputy Commissioner. The Board cannot call in question the legality or propriety of the order of the Deputy Commercial Tax Officer after the four years period had elapsed, after the date of communication of that order to the assessee. In these circumstances, to rely upon the date of the order of the Deputy Commissioner as the commencement of the period of limitation, to give jurisdiction to the Board to exercise its revisional functions in respect of the order of the Deputy Commercial Tax Officer will amount to circumvention of the provisions of the statute. The view of the Board that the order of the Deputy Commissioner is the final order of all the assessment orders which have become merged therein and that therefore the four years period should be computed from the date of communication of that order reveals that it is trying to ride a horse in opposite directions at the same time. If there is merger, the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appealed against and the confirmation is not limited to the portion appealed against. If such appeal be allowed, the decree appealed against will not be reversed by the appellate decree but only varied or modified and confirmed as to the rest, i.e., the portion not appealed against. The portion appealed against and litigated in the court of appeal is varied or confirmed according as the objection taken in the court of appeal to such part of the decree prevails or fails. The rest of the decree is confirmed because no objection is raised thereto by the party concerned and it is not the function of a court of appeal, as distinguished from a court of revision, to give relief to any party who has not applied to it in the form and within the time prescribed for appeal." This decision has authoritatively laid down that on a proper construction of the provisions of Article 182(2) the date of the appellate decree has to be reckoned as the starting point of limitation though the subject-matter of the appeal did not really involve the entirety of the subject-matter of the original decree appealed against. The learned Judges were dealing with the provisions of the Indian Limitation Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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