B SIDHARTH PRABHU Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner is a dealer in French Polish and for the year 1963-64 he was assessed to sales tax on a taxable turnover of Rs. 1,15,943-25. The total tax due as per the assessment was Rs. 2,764-69 and the appellant disputed the tax liability to the extent of Rs. 2,187-30. The balance, which is the admitted tax, came to Rs. 577-39 but the appellant remitted only an amount of Rs. 536-13 along with the appeal memorandum. The Appellate Assistant Commissioner dismissed the appeal on the ground that the tax on the admitted turnover had not been deposited as required by law. In the meantime, however, the assessing authority rectified the original assessment, whereby certain amounts already paid by the petitioner as tax and which had not been previously credited were given credit to. After the rectification the balance of tax due was Rs. 2,228-56 as against Rs. 2, 764-69 in the original assessment and the balance of surcharge came to Rs. 111-30 as against Rs. 173-09 in the original assessment. After the order of rectification was received by the petitioner, he took up the matter again to the Appellate Assistant Commissioner in appeal. The Appellate Assistant Commissioner dismissed the appeal observing that it was only a rectification of a mistake under S.43 of the Sale Tax Act whereby the tax liability of the petitioner had been reduced and therefore no appeal could be preferred against the said order under S.34. Against this order, the petitioner filed an appeal before the Sales Tax Appellate Tribunal. It was contended before the Tribunal that in the original appeal filed before the Appellate Assistant Commissioner various contentions had been raised against the assessment, that the Appellate Assistant Commissioner dismissed the appeal without considering those contentions merely for the reason that the admitted tax had not been remitted and that in view of the rectification order an opportunity should have been given to the petitioner to press his contentions in the appeal. The Tribunal held, and rightly too in our opinion, that the original assessment estimating the turnover of the appellant had become final and that the petitioner was not entitled to receive the right of appeal on the ground that a rectification order had been passed by the assessing authority. In this view, the Tribunal dismissed the appeal. It is the correctness of this order that is canvassed before us.

(2.) The petitioner has no case that the admitted tax had been fully deposited when he filed the appeal before the Appellate Assistant Commissioner. Under the second proviso to S.34, no appeal can be entertained unless it is accompanied by satisfactory proof of payment of the tax or other amounts admitted by the appellant to be due. As such we are unable to find any defect in the order passed by the Appellate Assistant Commissioner rejecting the appeal. The contention of the petitioner is that when an order under S.43 was passed rectifying an error apparent on the face of the record, the petitioner was entitled to treat the original assessment order as having been superseded by a subsequent order and that against this subsequent assessment order the petitioner was entitled to file an appeal. We see no merit in this contention. S.43(3) makes it clear that the provisions of the Act and the rules, which include the right of appeal also, would apply only to rectification orders which have the effect of enhancing an assessment or penalty. The clear intendment of the provision is that rectifications which have the effect of reducing an assessment or penalty would not come within the category of appealable orders. S.34 which deals with the appeal to the Appellate Assistant Commissioner does not take within its ambit a rectification order which reduces the assessment or penalty. The result is that merely for the reason that a rectification order has been passed, the petitioner assessee does not get a right of appeal. The decision of the Tribunal is correct and merits no interference at our hands.