STATE OF TAMIL NADU Vs. SIAR TOBACCO GO

JUDGEMENT

(1.) These are appeals by Certificate. The respondent has not put in his appearance. Civil Appeal No. 2277 of 1969 relates to the assessment of sales tax on the respondent for the assessment year 1957-58 and Civil Appeal No. 2278 of 1969 relates to his assessment for the assessment year 1958-59. Those assessments were made under the Madras General Sales Tax Act, 1939 read with Rules framed thereunder. The 1939 Act was replaced by the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1958). The assessments in question were made after 1959 Act came into force. Before the High Court the case proceeded on the basis that in respect of both the years the assessments were reopened under Section 16 of the 1959 Act. Mr. P. Ram Reddy appearing for the Revenue contended that in regard to the assessment for the year 1958-59 there was no reopening at all. No such contention appears to have been taken before the High Court and hence it is not permissible for the appellant to take up that contention in this Court. For the purpose of these appeals we shall proceed on the basis that the assessments in respect of both the years had been reopened.

(2.) The assessments were reopened by the Assessing Authority himself purporting to do so in exercise of his powers under S. 16 of the 1959 Act. The High Court came to the conclusion that the Assessing Authority could not have reopened the assessments as the assessments were made under the repealed Act. Under Rule 17 of the rules framed if an assessment made by the Assessing Authority was taken up in appeal to the appellate authority and the appellate authority had either confirmed or modified or reversed the assessment order, the reopening of such an assessment could be made only by the Appellate Authority. Hence the Assessing Authority was not competent to reopen the assessments. This conclusion was challenged in this appeal.

(3.) If the provisions of the 1939 Rules governed the assessment proceedings, there can be no doubt that the Assessing Authority had no right to reopen the assessments as the assessments in question were the subject matter of an appeal. In that event the only authority which could have reopened the assessment was the appellate authority. If on the other hand the assessments in question were either wholly or partly governed by the provisions of the 1959 Act then we have to decide whether the provisions of the 1959 Act empowered the Assessing Authority to reopen the assessments. The Madras High Court in Deputy Commr. of Commercial Taxes, Madras Division v. R. V. Ramiah Chetty and Co., (1968) 22 STC 217 (Mad) took the view that in cases where the assessments were made under the 1939 Act and Rules, the provision relating to reopening is Rule 17 (supra). The correctness of that decision was challenged before us.