RAMESH AND COMPANY Vs. COMMISSIONER FOR LAND REVENUE AND COMMERCIAL TAXES BOARD OF REVENUE C T MADRAS 5

JUDGEMENT

(1.) THE writ petition is directed against an order passed by the Board of Revenue, Commercial Taxes, on 14th December, 1977, under section 34 of the Tamil Nadu General Sales Tax Act, hereinafter referred to as the Act. THE petitioner is a registered dealer for the purposes of the Act. He is a dealer in battery plates. For the assessment year 1970-71 the Sales Tax Officer levied sales tax at the rate of 3 per cent on a multi-point basis. THE Deputy commissioner of Commercial Taxes exercised suo motu powers conferred on him under section 32 of the Act and revised the order of the Sales Tax Officer by levying sales tax at the rate of 9 per cent under item 41 of the First Schedule to the Act. Against this order of the Deputy Commissioner, the petitioner preferred an appeal before the Appellate Tribunal. THE appeal was dismissed as time-barred. THEreafter, the petitioner invoked the suo motu powers of revision conferred on the Board of Revenue under section 34 of the Act. THE Commissioner for Land Revenue and Commercial Taxes, by his order dated 14th December, 1977, has dismissed the revision petition and hence this writ petition.

(2.) SECTION 34 of the Act reads as follows : " (1) The Board of Revenue may, of its own motion, call for and examine an order passed or proceeding recorded by the appropriate authority under section 4-A, section 12, section 14, section 15 or sub-section (1) or (2) of section 16 or an order passed by the Appellate Assistant commissioner under sub-section (3) of section 31 or by the Deputy Commissioner under sub-section (1) of section 32 and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act may pass such order thereon as it thinks fit. (2) The Board of Revenue shall not pass any order under sub-section (1) if - (a) the time for appeal against that order has not expired; or (b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or (c) more than five years have expired after the passing of the order. (3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. (4) In computing the period referred to in clause (c) of sub-section (2), the time during which the proceedings before the Board of revenue remained stayed under the orders of a civil court or other competent authority shall be excluded."

(3.) I am unable to understand this passage to mean that the supreme Court intended that it would be open to the revisional authority to dismiss or to decline to interfere with the order sought to be revised if it felt that the assessee had no justification in not filing the appeal before the appellate Tribunal within the period of limitation. I understand this passage to mean that the Supreme Court ruled that it was the duty of the Commissioner to go into the merits of the case and interfere with the order if it found that the justice of the case required such interference. I fully agree with great respect in this context with the observation of Venugopal, J. , in the Full bench decision in Arunachalam Pillai v. State of Tamil Nadu to the following effect : "the Deputy Commissioner could not decline to exercise his revisional jurisdiction under section 32 on the ground that the assessee was not diligent in filing an appeal. If he was diligent in preferring an appeal, there would have been no occasion or need for the assessee to invoke the jurisdiction of the Deputy Commissioner under section 32."