P NARAYANASAMY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE order of the Court was made by THANIKKACHALAM, J. THE assessee is the appellant. THE assessment year for these appeals are 1980-81 and 1981-82. THE Enforcement Wing Officers had passed revisional order based on slips recovered an the business premises in 1984. Against the said order, the appellant had preferred an appeal before the Appellate Assistant Commissioner (CT), Thanjavur. THE then Appellate Assistant Commissioner (CT), Thanjavur, had sustained the tax levied by the revisional authority. Against that order, the appellant had preferred an appeal before the Sales Tax Appellate Tribunal. THE tribunal, in turn, remanded a portion regarding the tax levied, with a direction to pass a fresh order, after giving an opportunity to the appellant to give explanation. As per the order of the Tribunal, the revisional authority had passed fresh order. Aggrieved by this order, the appellant filed appeal disputing the liability on the entire revised turnover and levy of penalty. THE appellate Assistant Commissioner (AAC) in his order dated July 28, 1989 set aside the order of the revisional authority. THE Appellate Assistant commissioner had also held that nowhere in the assessment order, revisional authority had established the fact with valid data that the appellant had indulged in business transaction. According to the AAC, the assessee is doing only decorticating groundnut crop in his premises and collected certain charges for decorticating the groundnut.

(2.) THE Joint Commissioner, by exercising his jurisdiction under section34 of the Tamil Nadu General Sales Tax Act, 1959, issued a notice to the assessee stating that the orders passed by the AAC for the abovesaid two assessment years under consideration are erroneous and prejudicial to the interests of the Revenue. According to the Joint Commissioner, the order of AAC is erroneous for the following reasons : (1) THE order of AAC, Thanjavur, is bereft of appreciation of the evidence available and the findings of the revisional authority recorded clearly at pages 23-24 of the orders and also the conclusion and reasoning of the revisional authority made on the narrations found in the incriminating records; (2) THE orders of learned AAC are not based on fact findings with reference to each of the slips and incriminating records and therefore, it is not judicial.

(3.) WE have heard the rival submissions. The fact remains that AAC on appeal, in his order dated July 28, 1989, set aside the order passed by the assessing authority and held that the assessee is only decorticating groundnut gathered from the ryots and the assessee is not a dealer in groundnut. Based upon the evidence available on record, AAC passed the abovesaid order dated July 28, 1989. According to the Joint Commissioner, the orders passed by the AAC for the assessment years under consideration are erroneous and prejudicial to the interests of the Revenue, because the materials gathered by the reports dated March 18, 1993, April 15, 1993 and May 11, 1993 were not considered by the AAC. It remains to be seen that all those reports were gathered after the order was passed by the AAC on July 28, 1989. While exercising jurisdiction under section34 of the Act, the Joint commissioner can revise the order passed by the authorities below, only on the basis of the materials available on record. The Joint Commissioner cannot rely upon the extraneous materials, which were not on record before the order was passed by the lower authorities. The Joint Commissioner, relying upon the reports dated March 18, 1993, April 15, 1993 and May 11, 1993, came to the conclusion that the assessee is a dealer in groundnut. This finding arrived at by the Joint Commissioner, on the basis of the subsequent materials gathered by the department, after the order was passed by the AAC dated July 28, 1989 is not sustainable.