DY COMMR Vs. BALACHANDRAN

JUDGEMENT

(1.) The Revenue is the appellant in this Writ Appeal. The respondent in the Writ Appeal was the petitioner in the O. P. He is running a small printing press. He gets printed letter-heads, bill books, etc. For the assessment years 1980-81, 1981-82 and 1982-83 the returns filed by him were accepted. The assessments were made treating the goods delivered, like letter-heads, bill books, account books, invitation cards, etc. as "paper products" and taxed at 8 per cent. The assessment orders are Exts. P1 to P3. dated 2-8-1983. This Court in P. K. Dewar v. State of Kerala (33 STC. 73) and in subsequent cases categorically held that such materials, as those printed by the petitioner, cannot be treated as "paper products", but could be taxed only as general goods, The Board of Revenue has also clarified the position in Ext. P4, dated 1-8-1983. The petitioner filed a petition for rectification of the assessments for the three years praying for reduction of tax from that of 8 per cent single point, to the general rate. Stating that the question involves disputed questions of fact, the assessing authority negatived the prayer. The petitioner moved the Deputy Commissioner of Agricultural Income Tax and Sales Tax, Palghat (in short, Deputy Commissioner), the 2nd respondent in the O.P., invoking bis sue motu powers of revision under S.35 of the Kerala General Sales Tax Act, (in short the Act) to cure the illegality in the assessments, Exts. P1 to P3, by setting aside the same and directing fresh assessments, applying the correct rate of tax. The 2nd respondent (Deputy Commissioner) rejected the said prayer and dismissed the petition by Ext. P8, dated 11-9-1986. Thereupon the petitioner filed O.P. No. 7646 of 1986 and assailed Ext. P8. Viswanatha Iyer J. by judgment dated 25-5-1987, quashed Ext. P8 and directed the 2nd respondent to deal with Exts. P5 to P7 on the merits and in accordance with law. The Revenue has come up in appeal.

(2.) We heard counsel for the appellant (Revenue). The sole question that arises for consideration is whether the Deputy Commissioner was bound to consider and dispose of Exts. P5 to P7 on the merits, in exercise of the powers vested in him under S.35 of the Act. The main plea of the Revenue before the learned Single Judge and before us, was that the powers vested in the Deputy Commissioner under S.35 of the Act is to be exercised suo motu and not at the instance of an assessee. The learned Single Judge repelled that plea. In order to understand the scope of S.35 we may also bear in mind S.36 of the Act. They are as follows:

(3.) It now remains to consider the Division Bench decision of the Calcutta High Court, brought to our notice in State of West Bengal v. Paper Products Ltd. (61 STC 42). The Division Bench has not referred to the decisions of the Supreme Court in Raj Brothers Agencies case (31 STC 434), Bombay Ammonia Pvt. Ltd. case (37 STC 517) and other relevant decisions. With great respect to the learned Judges, who decided the case, we are unable to persuade ourselves to accept the dictum laid down in the said case as laying down the correct position in law. We respectfully dissent from the said decision.