State of Tamil Nadu vs Subbu Chemicals

Thanikkachalam, J.—This revision is directed against the order passed by the Sales Tax Appellate Tribunal, in C.T.A. No. 209 of 1981

which is turn arose out of the order passed by the Appellate Assistant Commissioner, Pollachi. Before the assessing officer, the assessee filed a

rectification petition u/s 55 of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as ""the TNGST Act"". In the rectification

application, the assessee stated that the goods purchased by the assessee was gum-resin and not resin. The assessing authority, considering the

fact that the assessee was dealing in resin, imposed tax at 8 per cent. According to the assessee, the goods dealt with by it was gum-resin and

therefore the tax is leviable at 4 per cent. But his application was rejected by the assessing authority. As against the order, the assessee preferred

an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed the appeal for the reasons stated in his

order. Thereafter, the assessee preferred an appeal before the Appellate Tribunal. The Appellate Tribunal allowed the assessee''s claim and

directed the assessing officer to complete the assessment and levy the tax at 4 per cent multi-point u/s 3(1) of the TNGST Act. It is against that

order, the present revision has been preferred by the Revenue.

Learned Additional Government Pleader (Taxes) submitted that the Appellate Tribunal has no jurisdiction to entertain the appeal filed by the

assessee against the order passed by the Appellate Assistant Commissioner since the Appellate Assistant Commissioner has no jurisdiction to

entertain the appeal filed against the order passed by the assessing officer u/s 55 of the TNGST Act. Learned Additional Government Pleader

(Taxes) also submitted that even though this point was not raised either before the Tribunal or before Appellate Assistant Commissioner since it is

a question of law going into the root of the matters which can be raised at that stage. The learned Additional Government Pleader submitted that

the order passed u/s 55 of the TNGST Act is not appealable u/s 31 of the Act since u/s 31 of the TNGST Act, section 55 of the Act was not

enumerated. As against the orders which were not enumerated u/s 31 of the TNGST Act, only a revision will lie u/s 33 of the TNGST Act,

according to the learned Additional Government Pleader (Taxes). In support of her contentions, the learned Additional Government Pleader relied

upon a decision of this Court reported in State of Tamil Nadu v. Crompton Engineering Company (Madras) Limited 1977 39 STC 260 and in

Dunlop India Ltd. v. Joint Commercial Tax Officer, Mount Road II Division, Madras [1978] 41 STC 41.

On the other hand, the learned counsel appearing for the assessee submitted that the order was passed by the assessing officer u/s 55 of the

TNGST Act and against that order, an appeal was filed before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner

entertained the appeal and passed an order on that appeal. As against that order passed by the Appellate Assistant Commissioner, an appeal was

preferred before the Tribunal and the Tribunal entertained the appeal and disposed of the same. Therefore, according to the learned counsel for the

assessee, it is not open to the department to raise a technical plea that the Tribunal has got no jurisdiction to entertain an appeal against the order

passed by the Appellate Assistant Commissioner since the Appellate Assistant Commissioner has no jurisdiction to entertain the order passed by

the assessing officer u/s 55 of the TNGST Act. According to the learned counsel, the order passed by the assessing authority u/s 55 of the

TNGST Act should be construed as an order passed u/s 31(3) of the TNGST Act and on this basis, appeal filed to the Appellate Assistant

Commissioner is competent. In order to support this contention, the learned counsel for the assessee relied upon a decision reported in State of

Tamil Nadu and Others Vs. P.M. Madhavan Nair and Others, . For all these reasons it was submitted that at this point of time, it is not open to the

department to question the jurisdiction of the Tribunal to entertain the appeal against the order passed by the Appellate Assistant Commissioner.

We have heard the rival submissions. The fact remains that before the assessing officer, the assessee filed an application u/s 55 o the TNGST

Act to rectify the original assessment order. According to the assessee, the goods dealt with the assessee was gum-resin, and not resin and,

therefore, the tax is leviable at 4 per cent instead of 8 per cent. This rectification application was rejected by the assessing authorty. Section 31 of

the TNGST Act enumerated the orders on which appeal will lie to the appellate authority. Section 55 of the Act was not mentioned in section 31

of the TNGST Act. Section 33 of the TNGST Act states that against those orders not mentioned in section 31 of the TNGST Act only a revision

will lie and not an appeal.

The fact remains that in the present case as against the order passed u/s 55 of the Act, an appeal was filed before the Appellate Assistant

Commissioner. The Appellate Assistant Commissioner dismissed the appeal filed by the assessee for the reasons stated in his order. As against the

order passed by the Appellate Assistant Commissioner, an appeal was filed before the Tribunal and the Tribunal entertained the appeal and passed

an order on the merits. In view of the provisions of section 31 and 33 of the TNGST Act, no appeal will lie against the order passed by the

assessing officer u/s 55 of the Act. Therefore, the Appellate Assistant Commissioner was not correct in entertaining the appeal filed by the

assessee as against the order passed u/s 55 of the TNGST Act. But, however, while disposing of the appeal, he dismissed the appeal for the

reasons stated by him in his order. When the Appellate Assistant Commissioner has no jurisdiction to entertain the appeal against the order passed

u/s 55 of the TNGST Act, the Tribunal also cannot have any jurisdiction to entertain the appeal against the order passed by the Appellate Assistant

Commissioner, since there is lack of initial jurisdiction. A similar question came up for consideration before this Court in the case of State of Tamil

Nadu v. Crompton Engineering Company (Madras) Limited 1977 39 STC 260 wherein this Court considered an identical issue and came to the

conclusion that the Tribunal was in error in holding that an appeal was maintainable to the Appellate Assistant Commissioner (Taxes) against the

order of the assessing authority, rejecting the application of the assessee for rectification of an alleged error. Another decision relied upon by the

Dunlop India Ltd. Vs. Joint Commercial Tax Officer, Mount Road II Division, wherein considering the provisions of the sections 32, 34 and 37 of

the TNGST Act, it is held as under :

Even assuming that there is nothing in law preventing an assessee from drawing the attention of the Deputy Commissioner to any defect present in

the order of the authorities mentioned in section 32 of the Tamil Nadu General Sales Tax Act, 1959, for the exercise of his suo motu powers of

revision thereunder, if the Deputy Commissioner passes an order interfering with the order of the subordinate authority, the order of the Deputy

Commissioner will be an order passed in exercise of the suo motu powers of revision. But if the Deputy commissioner declines to interfere with the

order of the subordinate authority, the intimation to the assessee by the Deputy Commissioner of his intention not to interfere with the order of the

subordinate authority will not be considered to be an order made u/s 32(1) and a further revision to the Board of Revenue u/s 34 will not lie against

such communication. The same principle would equally apply to the interference by the Board of Revenue u/s 34(1). Accordingly, only when the

Board of Revenue passes a positive order in exercise of its suo motu powers of revision under that section interfering with the orders of the

authorities enumerated therein, it would be passing an order u/s 34(1) against which an appeal would lie to the High Court u/s 37. But, when the

Board merely intimates to the party that it does not intend to exercise its suo motu powers of revision, such an intimation itself will not constitute an

order u/s 34(1) and no appeal would lie to the High Court against such intimation.

On the other hand, the learned counsel appearing for the assessee relied upon the decision reported in State of Tamil Nadu v. P. M. Madhavan

Nair 1982 49 STC 244, wherein while considering the provisions of sections 31(1), (3) and 36 of the TNGST Act, this Court held that the

appeals before the Tribunal against the Appellate Assistant Commissioner''s orders refusing to condone the delay in presentation and also against

orders refusing to condone the delay in representation are maintainable u/s 36 of the Tamil Nadu General Sales Tax Act, 1959. According to the

abovesaid decisions, orders rejecting the petition for excusing the delay is falling within the scope of section 33(3) of the TNGST Act and that,

therefore, an appeal was maintainable. The present case is not for excusing the delay in either filing the appeal or in representing the appeal.

Therefore, on facts, these decisions would render no assistance to the case relied on by the assessee. Thus considering the facts arising in this case

in the light of the judicial pronouncement cited supra, we hold that the order passed by the Tribunal is without jurisdiction.

Accordingly, the order passed by the Tribunal is set aside and the revision is allowed. No costs.

Petition allowed.