EASUM ENGINEERING COMPANY LIMITED Vs. GOVERNMENT OF MADRAS

JUDGEMENT

(1.) THE petitioner purports to prefer this Tax Revision case under section 38 of the Tamil Nadu Act 1 of 1959 against an order dt. 28th November, 1969 of the Tribunal, Madras. In respect of the asst. yr. 1961-62, the petitioner had collected a sum of Rs. 50, 530/84 by way of sales-tax from its customers, when the petitioner itself was not liable to pay that amount to the Government as sales tax. Consequently, the assessing authorities relying on S. 22 (3) of the Act recovered the said sum of Rs. 50, 530-84 from the petitioner. Against this order of the assessing authority, the petitioner preferred an appeal to the AAC Madras-1. THE appellate authority reduced the amount so demanded by Rs. 17, 945-63; with the result, the demand under S. 22 (3) was reduced to Rs. 32, 585-21. THE petitioner preferred a further appeal to the Tribunal. By that time, it had been decided by this Court in Kathan Nadar Co. vs. THE State of Madras and by the Supreme Court in Abdul quader & Co. vs. STO that when the dealer himself is not liable to sales tax, the amounts which he collected from his customers purporting to be sales tax could not be recovered by the State, since the State legislature itself has no power to enact that the amount collected by way of sales tax by a dealer when no sales-tax payable by him should be paid over the High Court. In view of these decision the Tribunal by its order dt. 30th January, 1965 , allowed the appeal preferred by the petitioner herein an directed the refund of Rs. 32, 585-21 assessed by the appellate authority. THE result is, the petitioner succeeded fully in respect of this claim. After the order of the Tribunal, the Joint CTO, Esplanade division I, passed an order on 5th January, 1967 giving effect to this order of the Tribunal. From the very nature of the case since the petitioner had succeeded fully before the tribunal and the Joint CTO simply implemented the order of the Tribunal, the petitioner could not have been aggrieved by the order dt. 5th January, 1967 of the Joint CTO, Esplanade Division I. Notwithstanding this, the petitioner purported to prefer an appeal against this order dt. 5th January, 1967 before the AAC, commercial Taxes. In that appeal, the petitioner sought to put forward an entirely a new claim, namely, that it was entitled to exemption of certain portion of the turnover which was originally assessed on the ground the turnover related to sales int the course of import. Before the Appellate authority, it also contended that it filed a petition on 10th January, 1967 for claiming that exemption and that petition had been dismissed on 23rd January, 1967. However, the Appellate Authority dismissed the appeal preferred by the petitioner stating that the petitioner had not put forward the claim for exemption at the time when the original assessment was made and therefore it could not put forward any such claim at all. He also stated : "it is also seen that the AO has faithfully carried out the orders of the AAC (Commercial Taxes-I) and the Tribunal, and in fact the appellants have no grievance in that regard. I, therefore, see no reason to interfere on behalf of the appellants. THE appeal is accordingly dismissed. Against this order of the Appellate Authority, the petitioner purported to prefer a further appeal before the Tribunal, Madras, and the said appeal was numbered as Appeal No. 1292 of 1967. In that appeal the, petitioner purported to file an application T. M. P. No. 75 of 1969 praying that the hearing of the appeal namely T. A. No. 1292 of 1967 should be deferred during the pendency of a Revision to this Court against the order of the tribunal in T. A. No. 190 of 1967. This T. M. P. No. 75 of 1969 as well as T. A. No. 1292 of 1967 were disposed by the Tribunal by the impugned order dt. 28th november, 1969. THE Tribunal held that the appeal itself was incompetent and not maintainable and therefore had to be dismissed. It also pointed out that the order of the Tribunal in T. A. No. 1292 of 1967. It is against this order, the present revision has been preferred by the petitioner under S. 38 of the tamil Nadu Act I of 1959.

(2.) WE are clearly of the opinion that there is absolutely no substance whatever in this Tax Revision case. The petitioner's purported appeal to the AAC and further appeal to the Tribunal were not at all maintainable for two independent reasons. One is, as we pointed out already, the petitioner succeeded fully before the Tribunal and the Joint CTO by his order dt. 5th January, 1967 merely implemented the order of the Tribunal and as pointed out by the AAC, he faithfully carried out the directions of the tribunal. Therefore, the petitioner cannot be said to have been aggrieved by the order of the Joint CTO dt. 5th January, 1967. Sec. 31 of the Act which alone deals with appeals to the AAC states that any person objection to an order passed by the appropriate authority can appeal. By no stretch of imagination, the petitioner could have objected to the order dt. 5th January, 1967 passed by the Joint CTO, Esplanade Division I, because that order was merely implementing the success which the petitioner achieved at the hands of the Tribunal. As a matter of fact even the learned counsel for the petitioner could have objected to this order dt. 5th January, 1967. His real grievance, if it can be said to be grievance at all, is against some other order of Joint CTO dt. 23rd January, 1967 dismissing the claim made by the petitioner for the first time on 10th January, 1967. However, the appeal preferred to the AAC was not against the order dt. 23rd January, 1967, but against the order dt. 5th january, 1967 to which admittedly the petitioner could not have taken any objection.