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Judgment
Raju, J.—The appellant before us is the assessee. The appellant was carrying on business as a dealer in glass, plywood, laminated sheets,
etc., during the assessment year 1976-77. As against the total and taxable turnover returned by the assessee for the said assessment year at Rs.
40,40,391.09 and Rs. 9,11,150.45, respectively, the assessing officer determined the total and taxable turnover of the appellant at Rs. 39,47,292
and Rs. 9,14,755, respectively. The order of assessment was passed on October 13, 1977. The assessing officer rejected a claim made for the
appellant before him for concessional rate of tax u/s 3(3) of the Act in respect of the turnover of Rs. 1,10,404.53.
Aggrieved, the appellant filed an appeal before the Appellate Assistant Commissioner. The only issue and item of turnover that was under
challenge in appeal before the first appellate authority was in respect of the rate of taxation on a turnover of Rs. 1,10,404.53. The first appellate
authority sustained the claim of the appellant and while setting aside the order of assessment in so far as it levied a tax of 8 per cent. on the above
referred to turnover, held that the turnover is liable to the concessional rate of tax at 3 per cent. u/s 3(3) of the Act. The order of the appellate
authority was passed on January 4, 1978. The assessee did not pursue the matter further since he was satisfied with the relief granted. But, the
Joint Commissioner of Commercial Taxes proposed to invoke his suo motu powers of revision u/s 34 of the Act by issuing a notice dated
November 8, 1982. The Joint Commissioner, while initiating action as above, did not choose to interfere with the item of turnover or the claim that
was the subject-matter of the first appeal, but proposed to really bring to tax a turnover of sales to the tune of Rs. 43,815 taxable at 4 per cent. It
is seen from the notice issued itself as well as the order of the Joint Commissioner that the assessing officer, while granting exemption to a sales
turnover of Rs. 30,30,572, committed an error in allowing exemption in respect of an item of turnover for which according to the Joint
Commissioner, separate figures were not available. The Joint Commissioner estimated the purchases effected, for which separate figures were not
in his view so available, at Rs. 36,512 and the sales turnover was estimated by adding 20 per cent. to the purchase value and that is how the
turnover of Rs. 43,815 proposed to be brought to tax, was arrived at.
On receipt of the notice dated November 8, 1982, the appellant objected to the move contending that the proposed revision is barred by
limitation prescribed therefore u/s 34(2)(c) of the Act and that at any rate, the turnover in question was only liable to tax at single point under entry
102 of the First Schedule to the Act and inasmuch as the said turnover has already suffered tax, the move to treat the turnover in question as
subject to multi-point rate, and levy tax once again in the hands of the appellant cannot also be justified. The Joint Commissioner overruled the
objections and confirmed the proposals by bringing to the net of taxation the turnover of Rs. 43,815 at the rate of 4 per cent. Aggrieved the above
appeal before us.
Mr. Ramagopal, learned counsel appearing for the petitioner, urged two contentions, one on the plea of limitation and the other on merits. In the
light of the view we propose to take on the issue relating to limitation, we consider it unnecessary to refer to or deal with the claim made on merits
regarding the nature of the goods or the issue as to whether it is a single point goods or multi-point goods. So far as the plea of limitation is
concerned, it is the contention of the learned counsel for the appellant that the order of the assessing officer having been passed on October 13,
1977, the proceedings being one made u/s 34 by way of suo motu revision, could not be initiated more than five years after the passing of the
order and on the facts apparent on record, the notice issued on November 8, 1982, initiating the proceedings is clearly barred by limitation and
that on this ground alone the order under challenge is liable to be set aside. Learned counsel appearing for the Revenue merely reiterated the
reasoning of the Joint Commissioner, trying to justify the action of the Joint Commissioner by taking advantage of the order passed by the
Appellate Assistant Commissioner on January 4, 1978, invoking the principle of merger.
We have carefully considered the submissions of the learned counsel appearing on either side. In our view, the plea based on limitation has been
well taken and liable to be sustained and that Revenue cannot take advantage of the order passed by the appellate authority to get over the plea of
limitation, and purport to get out an error said to have taken place in the order of assessment. In State of Madras v. Madurai Mills Co. Ltd.
[1967] 19 STC 144 the apex Court, while confirming the decision of this Court in [1962] 13 STC 124 (Madura Mills Co. Ltd. v. State of
Madras), held that the doctrine of merger is not a doctrine of rigid and universal application and that it cannot be said that it is automatically
attracted wherever there are two orders, one by an inferior authority and the other by the superior authority passed on an appeal or revision,
readily assuming fusion or merger of the two orders irrespective of the subject-matter of the appellate or revisional order and scope of appeal or
revision contemplated by the particular statute. It was further held therein that the application of the doctrine of merger depends on the nature of
the appellate or revisional orders in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. That was
a case where the assessee was assessed to tax on a certain turnover by the assessing officer and he pursued the matter on appeal for exclusion of
certain items of turnover and the claim was partly allowed. The assessing officer made a revised assessment on the basis of the appellate order.
Thereafter the assessee appears to have preferred a revision to the Deputy Commissioner of Commercial Taxes, objecting to the inclusion in its
turnover a certain sum collected by it by way of tax. The assessee did not raise any other objection regarding the order of assessment of the
Deputy Commercial Tax Officer or the appellate authority. The Deputy Commissioner rejected the revision filed by the assessee. While the matter
stood thus, the Board of Revenue sought to invoke the suo motu powers of revision to revise the order of assessment passed by the initial
assessing officer by including in the net turnover a certain sum representing the value of cotton purchased by the assessee from outside the State of
Madras of the ground that it was wrongly excluded in the computation of the turnover by the assessing officer. Under such circumstances, the apex
Court was of the view that it could not be said that there was a merger of the initial order of assessment with the order passed by the Deputy
Commissioner in revision which was confined to a challenge in respect of a particular item or items of turnover.
A Division Bench of this Court had another occasion to deal with a similar situation in Yercaud Coffee Curing Works Ltd. v. State of Madras
[1974] 33 STC 170. That was a case where the assessee claimed before the assessing authority exemption of a turnover of about Rs. 6 lakhs on
the ground that the sum represented second sales of fertilizers and the assessing authority accepted the assessee''s claim for exemption, but only in
respect of Rs. 5 lakhs and appears to have rejected its claim for the balance of about Rs. 70,000. The assessee seems to have preferred an appeal
only against the rejection of the claim by the assessing authority in respect of a turnover of Rs. 70,000 and the first appellate authority seems to
have allowed the claim of the assessee. Thereafter, the Board of Revenue in exercise of its suo motu powers of revision u/s 34 of the Act, revised
the order of the Appellate Assistant Commissioner and under the pretext of so revising the order of the first appellate authority, virtually set aside
the exemption granted to the assessee on the entire turnover of Rs. 6 lakhs and thereby disallowed the exemption granted initially given by the
assessing authority though the said turnover or issue was not the subject-matter of appeal at all. When the matter has been brought before this
Court, the Division Bench held that the dispute before the first appellate authority related only to the rejection of the claim for exemption of the
turnover of Rs. 70,000 and the Board of Revenue could not treat the order of the appellate authority in respect of such a claim as covering the
entirety of the turnover. The learned Judges of the Division Bench applied the ratio of the decision in State of Madras Vs. Madurai Mills Co., Ltd.,
and held that the theory of merger was inapplicable on the facts of the case and that the order of Board of Revenue in so far as it interfered with
the exemption granted by the assessing authority on a turnover of Rs. 5 lakhs should be set aside as being in contravention of section 34(2)(c) of
the Act, applying the limitation stipulated therein with reference to the date of order of the assessing officer.
No decision taking a contrary view has been brought to our notice and consequently the subject-matter before us has to be dealt with the light
of the ratio of the two decisions referred to supra. On the facts of the case before us, there can be no dispute that the appeal before the first
appellate authority related only to eligibility of the claim of the assessee for concessional rate u/s 3(3) of the Act in respect of a turnover of Rs.
1,10,440.53 and it has nothing to do with any other issue or category of turnover and particularly the sales turnover of Rs. 43,815 sought to be
brought to tax treating the said turnover as subject to multi-point levy and not to a single point tax as considered and exempted by the assessing
officer since in the view of the assessing officer it already suffered single point tax. While that be the position, we are unable to see as to how the
theory of merger could be invoked to a case like the one before us. The question relating to or the turnover in question sought to be brought to tax
by the Joint Commissioner was neither directly or indirectly an issue or even remotely concerned in the appeal before the first appellate authority.
Consequently applying the ratio of the two decisions referred to supra, we have to see whether the initiation of the proceedings u/s 34 in the case
before us is in conformity with the period of limitation provided for u/s 34(2)(c) of the Act. The order of the assessing authority being one passed
on October 13, 1977, in the light of our conclusion that the Revenue could not take advantage of the order of the first appellate authority, the
notice issued on November 8, 1982, initiating proceedings u/s 34 of the Act beyond five years is clearly barred by limitation. On this ground alone,
the tax appeal deserves to be allowed and it shall stand allowed as such. But in the circumstances, there will be no order as to costs.
Appeal allowed.