TMI Blog1987 (1) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted on behalf of the Revenue that the Tribunal has followed the decision reported in Kuppana Gounder v. Appellate Assistant Commissioner [1973] 32 STC 522 (Mad.) which has been reversed by the Division Bench of this Court in Appellate Assistant Commissioner v. N. Kuppanna Gounder [1975] 35 STC 170. In other words, it is represented on behalf of the Revenue that the Tribunal ought not to have entertained the application under section 55 of the Act in view of the facts and circumstances of the present case. It is also submitted on behalf of the Revenue that the Tribunal ought to have followed the decision in Kalyan Textiles v. Appellate Assistant Commissioner [1972] 29 STC 381 (Mad.). 3.. Mr. K. Mani, the learned counsel for the respondent, on the other hand, submits that the Tribunal is correct in having rendered the order under revision since the decisions reported in Kuppana Gounder v. Appellate Assistant Commissioner [1973] 32 STC 522 (Mad.), Appellate Assistant Commissioner v. Kuppanna Gounder [1975] 35 STC 170 (Mad.), State of Tamil Nadu v. Thakorebhai and Brothers [1983] 52 STC 104 (Mad.) and State of Tamil Nadu v. KS. M.G. Meenambal and Co. [1984] 56 STC 82 (Mad.) suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the said Additional Bench as follows: "We considered the contentions put forward by both sides carefully, and we have to state that the decision rendered by our High Court in T.C. No. 138 of 1971 has to be followed in preference to a decision rendered by the Allahabad High Court in [1975] 36 STC 220 (Commissioner, Sales Tax v. Khera Shoe Co.) with respect to a similar provision in the Sales Tax Act of Uttar Pradesh. It has also to be stated that the decision rendered in T.C. No. 138 of 1971 does not appear to have been brought to the Main Bench of the Tribunal and so the same has not been adverted to in T.A. No. 946 of 1976. So, following the approval given by the High Court in T.C. No. 138 of 1971 for sustaining an addition made by way of best judgment assessment because of non-maintenance of regular stock book, we are bound by the observations and so, we find the addition of only Rs. 10,000 made to a large book turnover of Rs. 18,80,457 reported by the assessee as ordered by the first appellate authority is justified. In view of our above findings, the appeal is devoid of merits and the same is dismissed." 6.. The point that arises for consideration in this revision is whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Income-tax Officer as well as the Commissioner of Income-tax in revision. The Bombay High Court, however, on an application made to it under article 226 of the Constitution directed the Income-tax Officer to revise the order in the light of the judgment in Khatau Makanji Spinning Weaving Co. Ltd. v. Commissioner of Income-tax [1956] 30 ITR 841. The department took up the matter in appeal to the Supreme Court. The learned Judges said: 'There is no doubt that, in view of the judgment of this court in Commissioner of Income-tax v. Khatau Makanji Spinning Weaving Co. Ltd. [1960] 40 ITR 189 (SC), the levy of an additional tax was illegal......The High Court was right in making the order directing the Commissioner to refund the amount of tax which was illegally collected.'" In the said decision reported in Kuppana Gounder v. Appellate Assistant Commissioner [1973] 32 STC 522 (Mad.) it was held that if a levy is found to be illegal or becomes illegal by reason of a subsequent decision of the court, even the exercise of power by an authority under the provisions governing the rectification of assessments is justified and legal. On the other hand if the application for rectif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 55(1) of the Act is correct and is in accordance with law. It has been laid down succinctly in Appellate Assistant Commissioner v. Kuppanna Gounder [1975] 35 STC 170 (Mad.) that where the law as declared will in its application depend on facts and those facts will have to be presented by the assessee, then the error will be on the part of the assessee if he has not placed them before the authorities at the time the assessment order was made. In the instant case, we find that when the facts that are now being placed, that is even at the stage of the petition the order of which is the subject-matter of this revision were placed before the appellate authority, there was no submission of the facts necessary. It was held in Appellate Assistant Commissioner v. Kuppanna Gounder [1975] 35 STC 170 (Mad.) that "although at the time the assessment order was made the sales turnover would be chargeable to tax at the concessional rate of tax if such turnover came out of raw hides and skins which had suffered tax according to the decision of the High Court, as the assessee had not claimed the concessional rate by placing the necessary facts, such omission would not be an error apparent on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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