TMI Blog1964 (9) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... od prescribed by rule 17(1) of the Madras General Sales Tax Rules, 1939 has expired, on the ground that turnover had escaped assessment. The year of assessment in each of these cases is 1953-1954. On the expiry of nearly three years after the end of that year, notices were issued to the petitioners, apparently under rule 17 of the Madras General Sales Tax Rules, 1939, to show cause why turnover which it was alleged had escaped assessment should not be assessed. Though the petitioners showed cause, the proceedings ended against the petitioners in that assessments were made relating to the alleged escaped turnovers. The petitioners appealed and the appellate authority by Ext. P. 4 in each of these cases accepted the contention of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout notice to the petitioners. Thirdly it was contended that the particular Deputy Commissioner who passed the orders Exts. P.5 was not notified to be the authority competent to exercise such powers. I am not dealing with the last two grounds in this judgment for, I think the case can be disposed of on the first of the grounds relied on by counsel on behalf of the petitioners. 3. It is necessary to read Section 12(2) as also rule 17(1) of the Madias General Sales Tax Act and Rules, 1939. 12 (2) The Deputy Commissioner may- (i) suo motu, or (ii) in respect of any order passed or proceeding recorded by the Commercial Tax Officer under sub-section (1) or any other provision of this Act and against which no appeal has been preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a lower rate. Section 12 on the other hand, enables the officers enumerated therein to re-open orders and pass such orders as they deem fit provided they are satisfied from the records that the orders are lacking in legality or propriety. In this respect the powers under section 12 are very much wider than that conferred on the authorities by rule 17(1). In another sense, as pointed out by counsel on behalf of the revenue, the powers under Section 12 are limited in that the scope of the enquiry under that section must always be limited to an examination of the records of proceedings which culminated in the order which is sought to be revised. But I cannot help coming to the conclusion that notwithstanding this limitation, Section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... core-Cochin Agricultural Income Tax Act XXII of 1950, there are the words subject to the provisions of this Act which are not found in Section 12 of the Madras General Sales Tax Act, 1939. Counsel on behalf of the Revenue is correct that, this aspect has also been relied on by the learned Judges who decided the case in 1958 K. L. J. 834. Their Lordships concluded that in relation to escaped turnover, no action can be taken under Section 34 of the Travancore-Cochin Agricultural Income Tax Act XXII of 1950, after the period prescribed in Section 35 which specifically provides for assessment of escaped income. The principle of that decision, notwithstanding the omission of the words subject to the provisions of this Act' in Section 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by Rule 17 (1). Otherwise, that provision according to me becomes nugatory and practically ineffectual. The purpose of the provision seems to be that there should be finality at least regarding the question of escaped turnover after the expiry of three years from the end of the assessment year. This purpose will not be served if assessment orders could be reopened after the expiry of the said three years. And such construction of Section 12 would have the effect of overriding the provision in Rule 17 (1) which is as much law as the Section and will be against the rule of harmonious construction. I quash Ext. P. 5 in each of these cases and allow these writ applications; but in the circumstances make no order as to costs. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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