Appello Agencies vs State of Tamil Nadu

Ramanujam, J.—This tax case has been filed by the assessee against the order of the Sales Tax Appellate Tribunal, rejecting its appeal filed

against the order of the Deputy Commissioner.

The assessee is a dealer in leather covers. It reported a total and taxable turnover of Rs. 1,90,476.67 and Rs. 1,67,806.69 respectively for the

year 1973-74. The assessing authority, after looking into the accounts, made a best of judgment assessment determining the total turnover at Rs.

1,95,512.92 and Rs. 1,72,932.74 respectively by his assessment order dated 31st March, 1975. The assessing authority levied the tax at 3 1/2

per cent for the period 1st April, 1973 to 7th August, 1973, during which the difference of tax between 15 per cent and 3 1/2 per cent had been

waived and at 15 per cent for the period from 8th August, 1973 to 31st March, 1974. The assessee did not prefer any appeal to the Appellate

Assistant Commissioner. Therefore the said assessment order had become final. However, on 4th December, 1976, the assessee filed a revision

petition before the Board of Revenue invoking its suo motu powers u/s 34 of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to

as the Act and to fix the rate of tax in respect of transistor leather covers at multi-point rate applicable to general goods treating the leather covers

as accessories to the transistors as has been done by the assessing authority. The Board of Revenue, however declined to exercise its discretionary

powers u/s 34 of the Act and rejected the revision petition on 21st February, 1977, on the ground that the assessee is not entitled to invoke the

revisional powers, since the assessee has not resorted to the remedies by way of appeals against the orders of assessment. Thereafter the assessee

filed a petition before the Deputy Commissioner of Commercial Taxes on 31st March, 1977, invoking his suo motu revisional powers u/s 32 of the

Act seeking the levy at general multi-point rate of tax for the leather covers sold by him. The Deputy Commissioner dismissed the said petition on

the ground that a similar revision petition filed by the assessee before the Board of Revenue having been rejected on 21st February, 1977, the

assessee is not justified in preferring a revision petition before the Deputy Commissioner on the same grounds. Against the order of dismissal by the

Deputy Commissioner the assessee filed an appeal before the Tribunal. The Tribunal rejected the appeal on the ground that since the Deputy

Commissioner has not gone into the merits of the assessment, but has dismissed the revision petition on the ground that it could not be maintained.

In view of the earlier revision petition having been dismissed by the Board of Revenue, the same cannot be interfered with in appeal. In that view,

the Tribunal rejected the appeal by the assessee. The said order of the Sales Tax Appellate Tribunal that has been questioned in this tax revision

case.

The learned counsel for the assessee contends that the Tribunal should have disposed of the appeal on merits without rejecting the appeal on the

ground that is cannot be maintained. In this case, none of the authorities have gone into the merits of the assessment. The original assessment has

been allowed to become final, without any further appeal to the Appellate Assistant Commissioner and a further appeal to the Tribunal. After the

assessment order has become final, the assessee moved the Board of Revenue to exercise its suo motu powers u/s 34 of the Act. The Board of

Revenue refused to exercise suo motu powers on the ground that he assessee had not exhausted its remedy by way of appeals against the order of

assessment and therefore the assessee is not entitled to invoke the suo motu jurisdiction of the Board of Revenue. Though, according to the learned

counsel for the assessee the Board of Revenue is not right in rejecting the assessee''s revision petition as it is well-established that an assessee can

either move the appellate authorities or the revisional authorities constituted under the Act and the non-filing of an appeal against the order of

assessment, cannot be a ground for rejection of the revision petition invoking the suo motu powers of revision. Even if the learned counsel for the

assessee may be right in the said submission, the order of the Board of Revenue has become final and it is not for us to decide the correctness of

legality of the order of the Board of Revenue. Nor are we called upon to express our opinion on the correctness or otherwise of the order of the

Board of Revenue dated 21st February, 1977. The only question before us is whether the Tribunal is justified in rejecting the appeal filed by the

assessee against the order of the Deputy Commissioner. As already stated, the Deputy Commissioner in this case, has rejected the revision petition

filed by the assessee on the only ground that the assessee having invoked the revisional jurisdiction of the Board of Revenue, the superior authority,

it cannot again move the Deputy Commissioner, a subordinate authority, to exercise suo motu powers on the same grounds. The view taken by the

Deputy Commissioner is that when the assessee has moved a superior authority in revision and failed, it cannot move a subordinate authority for

the same relief and on the same grounds. The Deputy Commissioner appears to be right. In Tel Utpadak Kendra v. Deputy Commissioner of

Sales Tax [1981] 48 STC 248 the Supreme Court has categorically ruled that when the appellate jurisdiction of a superior authority is invoked

against an order and that authority is seized of the case, it is not proper for a subordinate authority to claim to exercise jurisdiction to revise that

order which is the subject-matter before the higher authority. In this case, the revisional powers of the superior authority had been invoked by the

assessee and that authority has rejected the assessee''s revision petition. For the same relief, the assessee has later filed a revision petition before

the Deputy Commissioner, a subordinate authority. Having regard to the fact that the superior authority has considered the assessee''s revision

petition and rejected the same, it is not open to the subordinate authority to entertain the revision petition and grant relief to the assessee. Therefore

the rejection of the revision petition by the Deputy Commissioner on the ground that in view of the order passed by the Board of Revenue u/s 34

of the Act, he cannot exercise the power u/s 32 of the Act, appears to be in order. In view of the fact that the Deputy Commissioner has not dealt

with the revision petition filed before him u/s 32 of the Act on merits, the Tribunal had rightly rejected the appeal on the ground that unless the

revisional order is passed on merits, it cannot exercise its power of appeal for granting relief to the assessee. As a matter of fact in Bombay

Ammonia Pvt. Ltd. v. State of Tamil Nadu [1976] 37 STC 517 the Supreme Court has expressed the view that when the Deputy Commissioner

refused to exercise his revisional jurisdiction in favour of a party, the Tribunal was not justified in interfering with the said order. In that case, in

exercise of the suo motu power of revision u/s 32 of the Act, the Deputy Commissioner issued a notice to the assessee calling upon him to show

cause why a penalty on an undisclosed turnover should not be levied against him. In response to this notice, the assessee challenged the jurisdiction

of the Deputy Commissioner to levy the proposed penalty, and also claimed exemption in relation to the undisclosed turnover. The Deputy

Commissioner passed an order levying a penalty as proposed. On appeal the Tribunal set aside the order of the Deputy Commissioner. The High

Court on revision, reversed the order of the Appellate Tribunal in so far as it related to the appellant''s claim on exemption. On those facts, the

Supreme Court held that though suo motu power of the Deputy Commissioner u/s 32 of the Act, could be invoked by an assessee, who had not

filed an appeal against the assessment order the Deputy Commissioner rightly refused to exercise his revisional jurisdiction in favour of the appellant

and the High Court was right in reversing the order of the Appellate Tribunal in so far as it related to the appellant''s claim to the aforesaid

exemption. The view taken by the Supreme Court is that where the assessee wanted a positive order from the Deputy Commissioner in his favour

and such a positive order has not been passed by the Deputy Commissioner in revision, the Tribunal has no jurisdiction to interfere with that order.

In view of the said decision of the Supreme Court, we are not in a position to interfere with the order of the Tribunal in this case. The tax case is

dismissed. There will, however, be no order as to costs.

Petition dismissed.