The State of Tamil Nadu vs R. Palani

Ismail, J.—This petition u/s 38 of the Tamil Nadu Act 1 of 1959 has been preferred by the State against the order of the Sales Appellate

Tribunal, Madras-1. In this case, the dealer who had not preferred an appeal against the order of assessment to the appellate authority invoked the

jurisdiction of the Deputy Commissioner u/s 32 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as ""the Act""). Section 32

confers a suo motu power of revision on the Deputy Commissioner. The Deputy Commissioner dismissed the application filed by the dealer in the

following terms :

I agree with the learned counsel for the assessee that the assessee has a right to move the Deputy Commissioner to revise any order finally passed

by the assessing authority u/s 32 of the Madras General Sales Tax Act, 1959. At the same time, I feel that it shall be the duty of that officer to

satisfy himself whether the merits of the case deserve the intervention of the officer to exercise his powers under that Section. In the instant case,

the assessee was aggrieved by an order of assessment made by the assessing authority. He ought to have sought statutory remedies under the Act

against such an assessment order. He did not avail himself of these remedies. It is not, therefore, justifiable on his part to expect the department to

invoke the suo motu powers in his favour at this distance of time especially when he himself has admittedly not been diligent.

Thus, it is clear that the Deputy Commissioner declined to exercise his powers u/s 32 of the Act solely on the ground that the assessee did not

prefer an appeal against the order of assessment. It is against this order the assessee preferred an appeal to the Tribunal. The Tribunal by the

impugned order set aside the order of the Deputy Commissioner and directed the Deputy Commissioner to dispose of the petition preferred by the

assessee in accordance with law. It is the correctness of the order of the Tribunal that is challenged.

The Tribunal has stated in its order :

As a matter of fact, the Deputy Commissioner (C.T) has conceded the right of the assessee to move the Deputy Commissioner for revising any

order finally passed by the assessing authority u/s 32 of the Tamil Nadu General Sales Tax Act, 1959. The order of the assessing authority is dated

12th July, 1968. As the appellant moved for revision on 24th March, 1969, the Deputy Commissioner appears to have felt that the appellant''s

application should not have been entertained. While four years period of limitation is prescribed for making an application for revision, we do not

think that the rejection of the application on the ground that it is belated is proper. In Writ Petitions Nos. 4629 and 4630 of 1965, the Tamil Nadu

High Court has held that the power to revise an order made by a subordinate should be exercised when even the aggrieved assessee brings it to

the notice of the revising authority in order that it may invoke its powers, as long as the petition is not barred by limitation. We therefore think that

the power to revise the order vested with the Deputy Commissioner should have been properly exercised.

It is in view of this only, the Tribunal set aside the order of the Deputy Commissioner and remitted the matter to him for fresh disposal in

accordance with law.

The learned Additional Government Pleader contends that the Tribunal was under a misapprehension that the Deputy Commissioner rejected

the application of the assessee on the ground that it was belated, while as a matter of fact he declined to exercise his powers of revision because

the assessee had not filed an appeal. We are of the opinion that the Tribunal was certainly wrong in thinking that the Deputy Commissioner

dismissed the application preferred by the assessee on the ground that it was belated. At the same time, we cannot set aside the order of the

Tribunal because the Deputy Commissioner himself had declined to exercise his jurisdiction on an erroneous ground. As we pointed out already,

the Deputy Commissioner refused to exercise jurisdiction solely on the ground that the assessee had not been diligent in preferring an appeal. In

our opinion, that ground is totally irrelevant. If the assessee had preferred an appeal, there will be no occasion for the assessee invoking the

jurisdiction of the Deputy Commissioner u/s 32 of the Act, because the Deputy Commissioner can exercise his power of revision only so long as

the original order had not been made the subject-matter of appeal to the Appellate Assistant Commissioner of Commercial Taxes and further to

the Tribunal. Therefore, to say, that simply because the assessee had not preferred an appeal, the Deputy Commissioner would not exercise the

power of revision is to refuse to exercise the jurisdiction on a totally irrelevant ground which will have the effect of denying the very jurisdiction

itself. It will be an entirely different matter if the Deputy Commissioner had declined to interfere by exercising the suo motu power of revision on the

facts of the particular case which may also include want of diligence on the part of the assessee. But, that is far different from saying that the

Deputy Commissioner can refuse to exercise his powers of revision solely on the ground that the assessee had not been diligent in preferring an

appeal.

The learned Additional Government Pleader brought to our notice a decision of this court in State of Madras v. Bombay Ammonia Ltd. [1974]

34 S.T.C. 364 and contended that that decision supports the stand taken by the Deputy Commissioner in the present case. We are unable to

agree that that decision lays down any such proposition. In that particular case, the assessee, in reply to a notice issued by the Deputy

Commissioner of Commercial Taxes for exercising his suo motu power of revision u/s 32 of the Act for levying penalty u/s 12(3), claimed that a

portion of the turnover subjected to assessment was exempt from tax as it related to works contract. The Deputy Commissioner rejected this claim

on the ground that the assessee had not questioned the assessment at any stage before and the assessment was made on the assessee''s own

returns showing the turnover as taxable. It is against such an order of the Deputy Commissioner, an appeal was preferred to the Tribunal and the

Tribunal granted some relief. In the context of those facts only this court held that the rejection of the claim of the assessee by the Deputy

Commissioner on the ground that the assessee had not questioned the assessment at any stage before was a valid ground. It should be noticed that

that was a case where the Deputy Commissioner exercised his suo motu powers of revision for imposing a penalty and while so exercising such a

power took note of the fact that the assessee had not challenged the assessment at any earlier stage, which assessment itself was made on the

assessee''s own returns. That is far different from saying that when the assessee takes the initiative and invokes the jurisdiction of the Deputy

Commissioner, the Deputy Commissioner can decline to exercise jurisdiction u/s 32 of the Act solely on the ground that the assessee had not been

diligent enough in preferring an appeal.

The learned Additional Government Pleader brought to our notice the following passage occurring in the judgment referred to already. This itself

is an extract from the judgment of this court in W.P. Nos. 2157 to 2159 and 2180 of 1970.

We do not think that there is any error. The Deputy Commissioner was right in his view that the petitioner having not availed himself of the remedy

of appeals under the Act in respect of the assessments made on 31st December, 1966 and 10th February, 1969, he could not, notwithstanding his

failure, invoke the revisional jurisdiction.

The said observation has to be read in the context of the sentence immediately preceding the extract. That sentence is ""this court held that the

Deputy Commissioner was right in declining to exercise the discretion in favour of the assessee on the particular facts of that case by observing....

Therefore, the observation of this court in its judgment in W.P. Nos. 2157 to 2159 and 2180 of 1970 has to be understood in the context of the

above-said prefatory remark, namely, the order of the Deputy Commissioner declining to exercise the discretion in favour of the assessee was

approved only on the particular facts of that case. As a matter of fact, there cannot be an unalterable and universal rule of law as to under what

circumstances the Deputy Commissioner should exercise his discretion or should decline to exercise his discretion. From the very nature of the

case, the exercise or the refusal to exercise that discretion will depend upon the facts of each case. All that we are pointing out in this case is that

the Deputy Commissioner cannot refuse to exercise a discretion solely on the ground that the assessee had not been diligent enough to prefer an

appeal, because, if he had been diligent enough in preferring an appeal, there would be no occasion for the assessee to invoke the jurisdiction of

the Deputy Commissioner u/s 32 of the Act at all, since, once the order complained of has been made the subject-matter of an appeal, the

jurisdiction of the Deputy Commissioner to revise that order u/s 32 of the Act is ousted. Therefore, we have no hesitation whatever in holding that

the Tribunal was right in the present case in remitting the matter to the Deputy Commissioner for disposal according to law, even though we uphold

this order not on the ground mentioned by the Tribunal, but on a different ground. Under these circumstances, the tax revision case is dismissed.

There will be no order as to costs.