P S N S AMBALAVANA CHETTIAR AND COMPANY PRIVATE LIMITED Vs. COMMISSIONER OF COMMERCIAL TAXES BOARD OF REVENUE MADRAS 5

JUDGEMENT

(1.) AN interesting question of law is raised in this appeal form the order of the Board of Revenue, Madras, passed under the Madras General Sales Tax Act, 1959, and that relates to the power of the Board to interfere with the revised order of assessment of the Deputy Commercial Tax Officer implementing the order of the Commercial Tax Officer after the expiry of four years from the date of the order of the Commercial Tax Officer. These two officers functioned under the old Act of 1939. The sequence of events which have led to the filing of the present appeal are briefly as follows:

(2.) THE appellants are dealers in no-ferrous metals consisting mainly of brass and copper. Their business consists of purchase of scraps, conversion of the scraps into circles and sheets in their factory and selling the manufactured products. In respect of the assessment year 1955-56 the Deputy Commercial tax Officer, Park Town, determined their net turnover liable to tax as Rs. 24, 35, 134-3-3. They preferred an appeal to the Special Commercial Tax Officer, Madras City, the appellate authority which functioned under the Madras General Sales Tax Act, 1939, and were partially successful. The appellate authority re-fixed the taxable turnover at Rs. 14, 39, 914-12-6. This order was made on 3rd March, 1958. Giving effect to this appellate order the Deputy Commercial Tax Officer issued a revised assessment dated 19th March, 1958. The Board of Revenue in exercise of its suo motu powers of revision issued a notice to the appellants on 22nd February, 1962, asking them to show cause why a turnover of Rs. 9, 22, 166-2-0 deleted by the appellate authority should not be included in their turnover in view of the decision of the Supreme court in Ashok Leyland Ltd. v. State of Madras The appellants objected by their letter dated 6th March, 1962, to the proposed action of the Board, but eventually the Board overruled the objection and passed an order on 10th March, 1962, to the revising the order of assessment passed by the Deputy Commercial Tax Officer, Park Town, dated 19th March, 1958, and re-fixing the taxable turnover at Rs. 16, 96, 189-10-0. The appellants challenged the correctness of this decision of the Board mainly on the ground that the Board had no jurisdiction to pass the order on 10th March, 1962, when four years had elapsed from 3rd March, 1958, the date of the order of the appellate authority, the Special Commercial Tax Officer, Madras City.It is not necessary to consider in this appeal whether the inclusion of the turnover of Rs. 9, 22, 166-2-0 by the Board purporting to follow the decision of the Supreme Court in Ashok Leyland Limited v. State of Madras is well-founded or not. If the appellants can succeed in convincing this Court that the Board had no power to pass the order of 10th March, 1962, the Board's order must be struck down on this ground alone. The Board's powers of revision are contained in section 34 of the Madras General Sales Tax Act, 1959. We need not set down the provision as nothing turns upon its phraseology in this particular case. It is conceded by learned counsel for the appellants that the Board could in a proper case set aside the order of the Commercial Tax Officer or that of the Deputy Commercial Tax Officer. It is also clear that the Board would not be entitled to pass any order under section 34, sub-section (1), if more than four years elapse after the passing of the order which is in fact set aside. In the instant case the Board purported to revise the order of the Deputy Commercial Tax Officer dated 19th March, 1958, and the stand taken by the Board, and which is now sought to be supported by the learned Government Pleader, is that four years had not run out on 10th March, 1962, computed from 19th March, 1958. In dealing with the question of jurisdiction raised, the Board observes as follows :

(3.) "Where as a result of the appeal any change becomes necessary in the order appealed against, the Appellate Assistant Commissioner may authorise the assessing authority to amend such order accordingly and on such amendment being made, any amount overpaid by the appellant shall be refunded to him without interest or the further amount of tax, if any, due from him shall be collected in accordance with the provisions of this Act, as the case may be."