Chingleput District Brick and Tile Manufacturers Industrial Service Co-operative Society Limited vs State of Tamil Nadu and others

Govindasamy, J.—The Petitioners-society are assessees on the file of the Deputy Commercial Tax Officer, Amandakarai Assessment

Circle, Kilpauk Garden Road, Madras, the third respondent herein. The petitioners were assessed to tax for the assessment years as detailed

below :

As against the orders of these assessments, the petitioners have failed to prefer appeal before the appellate authority for the assessment years

1975-76, 1976-77 and 1980-81. In respect of the other assessment years, namely, 1977-78, 1978-79 and 1979-80, the appeals preferred by

the petitioners before the Sales Tax Appellate Tribunal (Main Bench), Madras, were allowed in Tribunal Appeal Nos. 1763, 1764 and 1765 of

1981 on August 6, 1982, holding that the transaction effected by the writ petitioners did not represent sales and hence the petitioners were not

liable to sales tax. The petitioners alleged that the petitioners filed appeals for the years 1975-76, 1976-77 and 1980-81 for the reason that the

petitioners believed that the principles stated by the Sales Tax Appellate Tribunal would be applicable and followed by the assessing authorities,

the second and third respondents herein. It is since the assessing authority did not follow the principles set out by the Sales Tax Appellate Tribunal,

the petitioners have filed revision petition invoking the suo motu power available u/s 32 of the Tamil Nadu General Sales Tax Act, 1959, to the

second respondent, the Deputy Commissioner (Commercial Taxes), Madras (South) Division, Grwams Road, Madras. Without issuing a notice to

the writ petitioners on the revision petitions filed before the second respondent, the second respondent, in his proceedings RC. No. 30120/82 B5

dated June 29, 1983, RC. No. 30118/82 B5 dated June 29, 1983 and RC. No. 30119/82 dated June 29, 1983, did not entertain the revision

petitions and rejected the revision petitions as not entertainable for the reason that while the revision petitions were under examination, section 32

of the Act had been amended by Act No. 22 of 1982 with effect from November 1, 1982, taking away the suo motu powers of the Deputy

Commissioner in respect of cases which are prejudicial to the interests of Revenue, on application filed by the aggrieved assessee, invoking the

powers u/s 32 of the Act. It is at this stage, the petitioners herein have preferred the aforesaid writ petitions for issue of a writ of certiorarified

mandamus to quash the order of the third respondent as well as the second respondents in the impugned proceedings and to direct the second

respondent to exercise the power vested in him u/s 32(1) of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as ""the Act"", to

consider and dispose of the revision petitions on merits, filed on September 29, 1982, by the writ petitioner.

The learned counsel for the petitioners contended that the writ petitioners filed revision petitions before the second respondent herein on

September 29, 1982, even before the amendment was effected, in respect of section 32 of the Act. In view of the fact that the writ petitioners

have filed revision petitions even before the amendment of the Tamil Nadu General Sales Tax Act u/s 32, the revisional authority should have

disposed of the revision petitions on merits. The rejection of the revision petitions on the ground that the subsequent amendment had taken away

the right of the revisional authority to exercise the suo motu power in respect of matter which are prejudicial to the interests of Revenue, is not

sustainable in law. In support of the above contention, learned counsel for the petitioner refers to the decision of a Full Bench of this Court in L.Ar.

Arunachalam Pillai and Sons v. State of Tamil Nadu reported in [1980] 45 STC 109, wherein the Full Bench of this Court held that the suo motu

power of revision of the Deputy Commissioner u/s 32 of the Tamil Nadu General Sales Tax Act, 1959, can be invoked by an assessee. This Court

also observed that the Deputy Commissioner could not decline to exercise his revisional jurisdiction u/s 32 on the ground that the assessee was not

diligent in filing an appeal. If he was diligent in preferring an appeal, there would have been no occasion or need for the assessee to invoke the

jurisdiction of the Deputy Commissioner u/s 32 of the Act. As an appeal excludes the jurisdiction of the Deputy Commissioner u/s 32, and as the

appellate power and revisional power of the Deputy Commissioner are mutually exclusive, the exercise of revisional power u/s 32 cannot be

declined on the ground of lack of diligence in filing an appeal.

In view of the aforesaid view of this Court, the exercise of the revisional power u/s 32 of the Act by the second respondent cannot be declined

even on the ground that subsequent amendment takes away the powers of the revisional authority. Admittedly, at the time when the revision

petitions were filed by the writ petitioners the second respondent was vested with the power so to say suo motu power to revise the orders of this

Court (sic) and as such the second respondent ought to have entertained the revision petitions filed by the writ petitioners before the amendment

and having allowed the writ petitioners to file revision petitions before the amendment, there is no justifiable reasons to reject the entertainment of

the said revision petitions by reason of the fact that subsequent amendment came into effect after the revision petitions were filed by which the

powers of the revision had been taken away. Such a contention is not sustainable in law. That apart, the revisional authority should have provided

an opportunity to the writ petitioner to satisfy the revisional authority that the revision petitions should have been entertained by reason of the fact

that the revision petitions have been filed by the writ petitioners before the amendment came into effect. The failure to issue notice and failure to

provide opportunity to the writ petitioners vitiates the impugned order by reason of the fact that the well-known maximum of audi alteram partem

was rejected to the petitioner so as to comply with the concept of principles of natural justice.

In view of the above, the impugned order is liable to be quashed and it is quashed, but with the direction to the second respondent to entertain

the revision petitions filed by the writ petitioners and to decide the matter on merits as per law held by the Sales Tax Appellate Tribunal in similar

matters. With these directions, the writ petitions are ordered. No costs.

Writ petitions allowed.