CEYLON THOWFECK HOTEL Vs. STATE OF MADRAS

JUDGEMENT

(1.) FOR the assessment year 1953-54, the petitioner was assessed to sales tax on the turnover of his hotel business at 4 1/2 pies in the rupee under the proviso to section 3(1)(b) as it stood then of the Madras General Sales Tax Act (Act IX of 1939) to which we shall hereafter refers as the Act. The Tribunal applied the law laid down by this Court W.P. No. 36 of 1954 (Since reported as Krishna Iyer and Another v. State of Madras that the statutory provision authorising the levy of tax at 4 1/2 pies in the rupee was unconstitutional and unenforceable and held that the tax should be assessed only at 3 pies per rupee. That decision of the Tribunal was rendered on 28th May, 1956. The excess amount of Rs. 936-1-2 that had been collected from the petitioner was refunded to him by adjustment of 30th September, 1956. The Madras General Sales Tax (Third Amendment) Act (XV of 1956), to which we shall refer hereafter as the Amending act, received the assent of the President on 1st October, 1956, and was published in the Gazette on 8th October, 1956. Section 17 of the Amending Act validated assessments under the provisions of the proviso to section 3(1) of the Act before it was amended. In addition the Amending Act amended the proviso to section 3(1) of the Act with retrospective effect from 1st August, 1949, and the amended proviso authorised levy of tax on the turnover of hotels at 4 1/2 pies in the rupee. After the Amending Act XV of 1956 came into force, the Deputy Commercial Tax Officer, the assessing authority, issued a notice to the petitioner on 8th January, 1957, asking him to show cause why the assessment should not be revised at the rate sanctioned by the amended Act, that is, at 4 1/2 pies per rupee. The objections of the petitioner were overruled and by his order dated 7th February, 1957, the Deputy Commercial Tax Officer held that the petitioner was liable to be assessed to a tax of Rs. 2, 808-3-5 on his turnover, and a demand notice was issued to the petitioner to pay up the balance still due, Rs. 936-1-2, which represented the difference between the tax originally assessed at 3 pies and the tax subsequently assessed at 4 1/2 pies in the rupee.

(2.) THE Commercial Tax Officer, to whom the petitioner appealed against the revised assessment dated 7th February, 1957, dismissed the appeal on the basis, that there had been no assessment on 7th February, 1957, and that, therefore, no appeal lay. THE petitioner appealed to the Tribunal. THE Tribunal held that section 17 of the Amending Act XV of 1956 validated the demand made of the petitioner and dismissed the appeal.THE petitioner applied to this Court under section 12-B of the Act to revise the order of the Tribunal. THE view taken by the Tribunal was erroneous. Section 17 of the Amending Act XV of 1956 could not validate the order of the Deputy Commercial Tax Officer dated 7th February, 1957. THE finality of the original assessment for 1953-54 was under the order of the Tribunal dated 28th May, 1956, and that order directed assessment to tax not at the rate of 4 1/2 pies but at the rate of 3 pies per rupee. Section 17 of the Amending Act did not operate to set aside that order of the Tribunal or to revise the original assessment which the Tribunal had modified. THE statutory finality of the assessment which flowed from the order of the Tribunal dated 28th May, 1956, was left untouched by section 17 of the Amending Act. THE learned Government Pleader did not seek to support either the view taken by the Tribunal or that taken by the first appellate authority, the Commercial Tax Officer.

(3.) ONE of the requirements of rule 17(3) that the tax had been assessed at too low a rate, was satisfied in this case. On 28th May, 1956, when the assessment was finalised the law as it stood then authorised a levy only at three pies per rupee, and the assessment was at that rate. But that law was amended and with retrospective effect by the Amending Act XV of 1956, with the result that the lawful rate applicable to the turnover of hotels in the assessment year 1953-54 was 4 1/2 pies in the rupee. Thus the original assessment was at too low a rate within the meaning of rule 17(3).No doubt rule 17(3) clothes the assessing authority with jurisdiction to revise the assessment if for any reason the original assessment was at too low a rate. The words "if for any reason" appear very wide. The question is, are they wide enough to enable the assessing authority to revise not his assessment but an assessment made final by an order of a higher authority, in this case the Tribunal. If we examine the scheme that appears to underlie sub-rules (1), (1-A), (3) and (3-A) of rule 17 - it should be remembered that sub-rule (3-A) takes in both sub-rules (1) and (3) - it seems clear to us that rule 17(3) does not authorise the assessing authority to revise the assessment ordered or finalised by a higher authority. In our opinion, under rule 17(3) the assessing authority can revise only his own orders of assessment. Under rule 17(3-A) the Commercial Tax Officer as the appellate authority under section 11 can revise his order, and the revising authority specified in section 12 can revise his order. The assessing authority cannot revise the order of the appellate authority or that of the revising authority.