G. Govindan vs Assistant Commercial Tax Officer, Guindy Division and Another

Ramaprasada Rao, J.—For the year 1963-64 the petitioner was assessed to sales tax on an alleged taxable turnover of Rs. 15,000 in

connection with the transfer of certain rights in the Tamil picture ""Maruthanattu Elavarasi"". It is common ground that it was only on this single

occasion that the petitioner has transferred certain rights in the picture during the entire assessment year. The original order of assessment was

passed on 29th August, 1966. He filed an appeal on 29th September, 1966. This was rejected in limine on the ground that there was a delay of

one day in the presentation of the appeal. The explanation of the petitioner supported by a medical certificate for his having been delayed the

presentation of the appeal by a day was not accepted. The petitioner thereafter did not pursue the matter until he was confronted with a demand

notice on the basis of the original assessment order in 1969. No sooner he was called upon to pay a tax of Rs. 1,500 and a penalty of Rs. 2,250,

he moved the Board of Revenue u/s 34 of the Tamil Nadu General Sales Tax Act on 2nd January, 1970, and, inter alia, contended that the order

of assessment is illegal and requested the Board to grant a stay of the collection of the amount under the demand. The Board on 6th January,

1970, rejected the petition and observed thus:

The Board has examined the request contained in the petition cited. It sees no reason to interfere on behalf of the petitioner. Consequently, the

question of granting stay of collection of tax and penalty does not arise.

It is as against this, the present writ petition has been filed.

The challenged order is no doubt non-speaking. The petitioner in his representation relied on a decision of this court in A.V. Meiyappan, Sole

Proprietor of A.V.M. Productions Vs. The Commissioner of Commercial Taxes, Board of Revenue and Another, and intended to prove that the

assessment was illegal as there was no sale involved in the transaction. The petitioner was not heard. The application was summarily rejected. It

cannot, therefore, be said that the Board of Revenue in the instant case did apply its mind to the facts or to the law which is applicable to the facts

of this case. The learned Government Pleader, however, would say that there was an attempt by the petitioner to file an appeal and, therefore, the

petitioner cannot seek for a revision of the original assessment order. As already stated, this appeal in question was an ineffective appeal because it

was dismissed in limine on the technical ground that it was delayed by a day. In Erode Yarn Stores v. State of Madras [1963] 14 S.T.C. 724, a

Division Bench of this Court under similar circumstances said:

The Board is not prevented from exercising its power of revision u/s 34 of the Madras General Sales Tax Act, 1959, solely for the reason that a

belated appeal has been filed to the Appellate Tribunal.

The learned Judges also expressed the view that to reject a petition duly filed u/s 34, the Board must be satisfied that the assessment order in

question was made the subject-matter of the appeal which ought to be an effective appeal. The learned Judges continued and said that where a

petition to condone the delay in filing an appeal to the Appellate Tribunal is rejected and the appeal petition is also rejected in limine, it cannot be

said that the order has been made the subject of an appeal to the Appellate Tribunal within the meaning of Section 34(2)(b) of the Act. Following

the principle in this case it cannot be said that there was an effective appeal before the Appellate Assistant Commissioner. If, therefore, this hurdle

is removed, then the only order which could be revised by the Board in the circumstances is the original order of assessment made by the assessing

officer on 29th August, 1966. When its jurisdiction was sought it rejected the petition observing that it sees no reason to interfere. The order ex

facie does not contain any reason and is, therefore, non-speaking. In these circumstances it is difficult to hold that the Board of Revenue did

exercise its jurisdiction when it ought to have. In these circumstances, the rule nisi is made absolute with reference to the order of the Second

respondent, and the Board of Revenue is directed to deal with the revision petition dated 2nd January, 1970, filed by the petitioner and dispose of

the same in accordance with law and in accordance with the decision referred to in the grounds of revision. There will be no order as to costs.