CIRCOS COFFEE COMPANY Vs. STATE OF MYSORE

JUDGEMENT

(1.) Circo's Coffee Company-hereinafter called "the assessee"-is a partnership carrying on business of grocers in the town of Bangalore. For the quarters ending 30/06/19 5/09/19 5/12/1955 and 31/03/1956, the Sales Tax Officer, 1st Circle, Bangalore, in assessing the assessee to pay sales tax granted exemption in respect of certain sales in coffee seed. The Deputy Commissioner of Commercial Taxes, Bangalore Division, purporting to act under section 15 (l) (i) of the Mysore Sales Tax Act (46 of 1948) commenced proceedings suo motu for revision of assessment of the assessee, and by order dated 8/12/1958, revised the assessment for the four quarters. This order was set aside by the Mysore Sales Tax Appellate tribunal on the view that the Deputy Commissioner had no authority on 8/12/1958, to revise the order of the Sales Tax Officer purporting to act under section 15 (l) (i) of the Mysore Sales Tax Act, 1948. Thereafter the Deputy Commissioner commenced fresh proceedings for revising the assessment under section 15 (l) (i) of the Mysore Sales Tax Act (46 of 1948) read with section 40 (1) of the Mysore Sales Tax Act, 1957, and by order dated 10/07/1959, revised the order of assessment. He held that the Sales Tax Officer had wrongly granted exemption in respect of certain sales, and ordered that the price received in respect of those transactions be included in the taxable turnover of the assessee. Against the order of the Deputy Commissioner of Commercial Taxes, the assessee appealed to the Sales Tax Appellate tribunal in respect of the four quarters. The tribunal held that the Deputy Commissioner of Commercial Taxes had not recorded any " independent finding of his own " and that he had passed the order revising the assessment merely on the basis of the order passed by the Inspecting Officer. The tribunal accordingly allowed the appeals filed by the assessee. Against the order passed by the tribunal, the State of Mysore preferred revision petitions to the High court of Mysore under section 23 (1) of the Mysore Sales Tax Act, 1957. The High court remanded the cases to the tribunal for disposal according to law,holding that the tribunal had acted improperly in disposing of the appeals filed by the assessee on a technical ground and without going into the merits of the dispute raised by the assessee. At the hearing before the tribunal on remand, the assessee sought to raise contentions, two out of which had originally been raised before it and had been rejected, and which were not pressed before the High court in the revision petitions, and certain new contentions. The tribunal apparently declined to allow those contentions to be raised and held that since the assessee was not a second dealer in coffee within the State he was not exempt from liability to pay sales tax. Against that order, revision applications were again filed to the High court. Before the High court, counsel for the assessee did not challenge the finding recorded by the tribunal on the question whether the assessee was a second dealer, but sought to re-argue questions which were either decided at the first hearing before the tribunal and were not pressed at the first hearing before the High court, and new questions which were not raised before the tribunal in the revision petitions. The High court declined to allow those questions to be argued, observing that counsel for the assessee had given up at the earlier hearing the two contentions which were raised before the tribunal, and which were rejected, and that the only question which was left open to be determined on remand to the tribunal related to the merits of the dispute. Accordingly the revision petitions filed before the High court were dismissed. With special leave, the assessee has appealed to this court.

(2.) Under the Mysore Sales Tax Act (46 of 1948) the Deputy Commissioner and the Commissioner were authorised by section 15 to call for and examine the record of any order passed or proceeding recorded by any. officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of such order. Proceeding in this behalf could be commenced either suo motu or on an application preferred to those officers. The assessment orders in respect of the four quarters were made by the Sales Tax Officer between 19/12/1955, and 28/06/1956. The Deputy Commissioner commenced proceeding under section 15 (l) (i) for revision of those orders of the Sales Tax Officer. The Mysore Sales Tax Act (46 of 1948) was repealed by the Mysore Sales Tax Act (25 of 1957) as from 1/10/1957. By section 40 (1) of the repealing Act, several Acts including the Mysore Sales Tax Act (46 of 1948) were repealed, but it was expressly enacted that the repeal shall not affect

(3.) The two contentions which were previously raised and rejected were, as already pointed out, not raised before the High court and could not be again canvassed before the tribunal after remand. The other contentions which were sought to be raised before the tribunal were apparently not permitted to be raised by the tribunal. Normally a party approaching a court in appeal or in revision is restricted to the grounds raised by him in the memo. of appeal or revision. It is true that the court has the power to allow him toraise new questions which have not been included in the memo. , but the court is not bound to do so. At the first hearing, four grounds were raised and they were considered by the tribunal. After the remand two out of those four grounds and some new grounds were sought to be raised and the tribunal apparently did not allow those grounds to be raised. The High court in exercise of its revisional jurisdiction also did not allow those contentions to be raised. The question was one of discretion of the tribunal and the High court, and this court in an appeal with special leave will certainly not interfere with the discretion of the tribunal and the High court. It is true that the High court observed that the order of remand made at an earlier stage restricted the scope of the enquiry to the merits of the dispute between the parties and no fresh questions could be raised before the tribunal. Assuming that the High court was not strictly right in the view that it took, if the tribunal did not allow the assessee to raise the questions which it sought to raise, there is no ground on which this court will be justified in allowing those new contentions to be raised and to remand the case to the tribunal for hearing on those questions. It is true that a question as to the vires of section 40 (2) of the Sales Tax Act, 1957, was raised, but it is now settled by decisions of this court that the question as to the vires of a statute which a taxing officer has to administer cannot be raised before him.