R RAMIAH MOOPANAR Vs. GOVERNMENT OF MADRAS

JUDGEMENT

(1.) THE Deputy Commercial Tax Officer passed his first order of assessment in 1949, and then revised it on 10th March, 1950, because he was of the view that some turnover had escaped assessment when it was first made. Against that order dated 10th March, 1950, the assessee preferred an appeal to the Commercial Tax Officer, who dismissed that appeal on 10th May, 1951, confirming the revised order of the Deputy Commercial Tax Officer. THE Amending Act of 1951, which gave a right of appeal to the Tribunal under Section 12A came into force on 15th May, 1951. On 10th May, 1951, when the Commercial Tax Officer passed the order on appeal, there was no right of appeal to the Tribunal. Subsequent to 15th May, 1951, the assessee preferred a revision petition to the Deputy Commissioner of Commercial Taxes on 27th June, 1951, and it was only the Deputy Commissioner that could dispose of that petition in revision. It could not be treated as an appeal and transferred to the Appellate Tribunal. During the pendency of the application presented by the assessee on 27th June, 1951, the Deputy Commissioner of Commercial Taxes issued a notice dated 10th October, 1951. Paragraph 2 of that notice ran : "As the revised final assessment order of the Deputy Commercial Tax Officer, Tirunelveli, cited above, (that is, the order dated 10th March, 1950) is held to be illegal it is hereby cancelled."

(2.) IN paragraph 3 the Deputy Commissioner called upon the assessee to show cause why the tax payable by him should not be assessed on a turnover, the estimate of which was furnished. Eventually the Deputy Commissioner passed orders accepting the figure of the Deputy Commercial Tax Officer in his revised order but really making it as an assessment made in revision by himself; because it should be remembered he purported to set aside the revised order of the Deputy Commercial Tax Officer dated 10th March, 1950, as illegal. Against the order of the Deputy Commissioner of Commercial Taxes, the assessee preferred an appeal to the Tribunal under Section 12A. The Appellate Tribunal rejected the appeal as incompetent. It is against this order that the assessee has preferred this petition in revision.The facts set out above were of Tax Revision Case No. 15 of 1953, which related to the assessment year 1947-48. The facts in issue were similar for the next assessment year 1948-49, which formed the subject matter of Tax Revision Case No. 16 of 1953 also preferred by the assessee. Section 12A(1) of the Act gives the assessee a right of appeal against an order relating to the assessment passed by the Deputy Commissioner suo motu under Section 12, sub-section (2). The Appellate Tribunal was of the view that the order passed by the Deputy Commissioner on 28th November, 1951, was not an order of assessment passed by the Deputy Commissioner suo motu but an order passed by him under Section 12, sub-section (2), sub-clause (ii), that is an order passed on the application of the assessee. We are unable to accept that interpretation of the notice issued by the Deputy Commissioner dated 10th October, 1951. IN paragraph 2, as we pointed out above, he purported to set aside the assessment made by the Deputy Commercial Tax Officer, that is, the revised assessment. And in paragraph 3 the Deputy Commissioner purported to assess the assessee, himself, that is, in exercise of the powers given to him by Section 12(2)(i). That is, he purported to treat at as a matter taken up suo motu by himself despite the fact that earlier he had been moved by the assessee to grant him relief. It is rather difficult to hold in the face of the wording of the Deputy Commissioner's notice that what he purported to do eventually on 28th November, 1951, was only on the basis of the revision petition preferred to him by the assessee and not on what he could take up himself suo motu on the material placed before him.