SNEVA DIAMOND TOOLS PRIVATE LIMITED Vs. APPELLATE ASSISTANT COMMISSIONER COMMERCIAL TAXES IV MADRAS CITY

JUDGEMENT

(1.) THIS is a petition for directing the first respondent to dispose of the petition dated 27th April, 1981 of the petitioners in accordance with law. Mr. C. Natarajan , learned counsel for the petitioners, in his interesting and eruditing argument submits that the provision of section 55 of the Tamil Nadu General Sales Tax Act, 1959 is wider in scope than the appellate provision available in the enactment. He submits that the ratio decidendi in State of Madras v. S. G. Jayaraj Nadar & Sons 1972 (1) CT R 308, 1971 AIR (SC) 2405, 1971 (28) STC 700, 1972 (3) SCC 300, 1972 (1) SCR 751, 1972 (2) MLJ 14 (SC) is a declared law. As per the provisions of article 141 of the Constitution, a declared law should be followed by all the Courts in our mother-land, including the Tribunals, quasi-judicial organisations and Governments. In the instant case before us what is sought for the petitioners is to quash the order of the first respondent dated 3rd August, 1981 in L. Dis. 1462/81 and also to direct the first respondent to dispose of the petition dated 27th April, 1981 of the petitioner in accordance with law. The accompanying affidavit, sworn to the Managing director of the petitioner-company runs thus : The petitioners are assessees on the files of the Deputy commercial Tax Officer, Esplanade I Assessment Circle. During the periods 1972-73 and 1973-74 they were assessees on the file of the Additional Circle , 17, L. G. N. Road , Madras -2. The assessments were completed by the Additional Deputy Commercial Tax Officer, Chepauk Assessment Circle , Madras -2. Due to inadequate staff in the company there were delay in filing the annual return in form A-1 for the assessment years 1972-73 and 1973-74. The Additional deputy Commercial Tax Officer, Chepauk Assessment Circle , made an assessment and imposed penalty of Rs. 7, 413 by his proceedings No. 48984/72-73 dated 14th November, 1977. The petitioners preferred appeal before the first respondent and the first respondent modified the same in appeal No. 52 of 1978 dated 17th June, 1978, quantifying the penalty at Rs. 4, 609. The first respondent has not accepted the contention that the mere delay in filing the A-1 return could not be taken as a ground for levying penalty. Likewise for the assessment year 1973-74 the Additional Deputy Commercial Tax Officer, Chepauk Assessment Circle , levied a penalty of Rs. 10, 124 in his order T. N. G. S. T. No. 48984/73-74 dated 14th November, 1977. The first respondent modified the order and quantified the penalty to the sum of Rs. 6, 750 in his appeal No. 12 of 1978 dated 18th April, 1978. The second respondent gave effect to the orders of the first respondent subsequently. Due to heavy losses suffered by the petitioner-company and lack of cash resources the modified penalty as taxed by the first respondent for both the years could not be remitted in time and thereupon the Additional Deputy Commercial Tax Officer, Chepauk Assessment Circle, initiated proceedings under section 26 of the Tamil Nadu General Sales Tax Act, 1959 and took recovery proceedings. The petitioners'representation to the third respondent for orders of stay and for grant of time to pay the arrears ended without success. While that being so, separate proceedings were initiated by the assessing authority for the penalty under section 24 (3) of the Act. The petitioners filed a writ petition in this Court in W. P. No. 2498 of 1981 and obtained an order of stay of the operation of the proceedings of the second respondent. It is now represented by the learned counsel for the petitioners that W. P. No. 2498 of 1981 was allowed. Thereupon the petitioners on 27th April, 1981 filed a petition for rectification under section 55 of the Tamil Nadu General Sales Tax Act 1959 praying for the cancellation of the penalty. The petitioners contended that the penalty has been levied in respect of book turnover which has been adopted without estimate or best judgment assessment and therefore there was no jurisdiction to levy penalty under section 12 (3) as per the judgment of the Supreme Court in 1972 (1) CTR 308, 1971 AIR (SC) 2405, 1971 (28) STC 700, 1972 (3) SCC 300, 1972 (1) SCR 751, 1972 (2) MLJ 14 (State of Madras v. S. G. Jayaraj Nadar and Sons ). Now during the course of the argument, Mr. Natarajan , learned counsel for the petitioners, referred to the ratio decidendi in 1980 (45) STC 15 2 (Mad.) ( Kuppuswamy Mudaliar & Sons v. Board of Revenue ). It is now contended on behalf of the petitioners that as per the judgment of the Supreme Court in 1972 (1) CTR 308, 1971 AIR (SC) 2405, 1971 (28) STC 700, 1972 (3) SCC 300, 1972 (1) SCR 751, 1972 (2) MLJ 14 (State of Madras v. S. G. Jayaraj Nadar & Sons), the authorities have no jurisdiction to levy penalty under section 12 (3) of the Act and that the penalty had been levied in respect of book turnover which had been adopted without estimate or best judgment assessment. THIS being an error apparent on the face of the record, the first respondent ought to have rectified the same. THIS is the only point that is very much stressed by Mr. Natarajan , learned counsel for the petitioners. He submits that a mere reading of section 55 of the Act would show that the aggrieved person can point out the error that had occurred in the judgment within 3 years from the date of the order. In the instant case a petition under section 55 of the Act has been filed after the appeal time is over. It is not as if that the petitioners have got no remedies. But he had not preferred any revision or any further appeal under the provisions of the enactment. Yet, the grievance of the petitioners ought to have been taken into consideration. THIS argument so advanced is not only untenable but also unsustainable. The decisions cited by the learned counsel for the petitioners are not helpful to them. In those decisions nowhere it is stated that without the petitioners exhausting all his remedies by way of further proceedings either by way of further appeal or by way of revision, cannot invoke the provisions of section 55 of the At. As stated earlier, in the instant case no appeal or revision has been preferred against the order. After the appeal time was over, the petitioners had come forward to say that some serious errors had crept in and to rectify the same, the petitioners are now invoking section 55 of the Act. What section 55 of the act contemplates is that within three years from the date of order, a petition to rectify the error apparent on the face of the record has to be filed. The petitioners in the instant case had got the right of appeal to the higher forum which they had not resorted to. They plead ignorance. Ignorance of law is no excuse. In the instant case before us, it is submitted that penalty under section 12 (3) of the Tamil Nadu General sales Tax Act, 1959 for wilful non-disclosure of turnover was levied at Rs. 7, 413 and Rs. 10, 124 respectively for the years 1972-73 and 1973-74, and that the said penalty was subsequently reduced to a sum of Rs. 4, 609 and Rs. 6, 750 respectively for the years 1972-73 and 1973-74. On the orders of the first respondent on 7th September, 1978, the petitioners failed to pay the penalty till October, 1980. Therefore coercive steps were taken to collect the arrears of penalty from the petitioners. The assessments and consequent revisions in question were made after observing all legal formalities. It is submitted on behalf of the respondents herein that recovery proceedings for the collection of arrears of penalty were also initiated as per the Act. There is no illegality or arbitrations in the action of the first respondent. According to the respondents, no rectification is necessary, for there is no error apparent on the face of the records. THIS court also does not find any error apparent on the face of the record, requiring rectification. "rectification" means "taking out mistakes from. " The provision of section 55 of the Act is only to rectify any error apparent on the face of the record. On a careful perusal of the affidavit accompanying this petition, it is clear that the petitioners wanted redressal of the grievance which they entertained as a result of the order which could have been the subject-matter of appeal or revision which was failed to be filed by the petitioner within the time fixed as appeal time or revision time in the enactment. When such a right - royal method is available for the petitioners to approach the higher forum to get redressal of their grievance, they ought to have availed that. Instead of doing that and after the expiry of three years, they cannot approach the authorities with a petition under section 55 of the Act because section 55 of the Act is only with respect to rectification of errors apparent on the face of the record, such as clerical errors, typing mistakes, etc. Therefore the petitioners cannot approach the authorities with a petition under section 55 of the Act against an order which could be the subject-matter of appeal or revision. Under the circumstances, the contentions raised on behalf of the petitioners in this writ petition, though interesting and thought provoking, yet deserve to be rejected. There is no merit in this writ petition. Hence this writ petition is dismissed. Under the circumstances, there is no order as to costs.