1995 (9) TMI 360 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Jurisdiction of the Commissioner of Commercial Taxes under Section 20 of the Andhra Pradesh General Sales Tax Act, 1957.
2. Right of the assessee to invoke the revisional power of the Commissioner.
3. Applicability of the principle of res judicata.

Detailed Analysis:

1. Jurisdiction of the Commissioner of Commercial Taxes under Section 20 of the Andhra Pradesh General Sales Tax Act, 1957:
The appellant-assessee challenged the order of the Commissioner of Commercial Taxes dated February 20, 1989, which was made in purported exercise of revisional powers under Section 20 of the Andhra Pradesh General Sales Tax Act, 1957. The Supreme Court's decision in State of Andhra Pradesh v. Lakshmaiah Setty & Sons [1994] 94 STC 190 clarified that the assessee cannot invoke the suo motu power of the authorities under Section 20. The Court held that "the validity of an assessment order must be tested in an appeal or revision filed by an assessee as provided for in the Act and in no other way." Consequently, the order of the Commissioner was deemed to be without jurisdiction and ultra vires the powers under Section 20 of the Act.

2. Right of the Assessee to Invoke the Revisional Power of the Commissioner:
The appellant-assessee argued that the decision in Lakshmaiah Setty & Sons was per incuriam as it did not consider the Supreme Court's earlier decision in Board of Revenue v. Raj Brothers Agencies [1973] 31 STC 434. However, the Court found that the Raj Brothers Agencies case dealt with a different provision (Section 34 of the Madras General Sales Tax Act, 1959) and was not applicable. The Court reiterated that the suo motu power under Section 20 was conferred to correct errors of law or procedure to safeguard the interests of revenue, and not for the assessee to invoke. The amendments made by Act 18 of 1985 further restricted the Commissioner's revisional powers to orders "prejudicial to the interests of revenue."

3. Applicability of the Principle of Res Judicata:
The appellant-assessee contended that the principle of res judicata barred the State from questioning the Commissioner's order since the Court had previously directed the Commissioner to entertain the revision petition. The Court rejected this argument, citing the Supreme Court's decision in Isabella Johnson v. M.A. Susai AIR 1991 SC 993, which held that a court without jurisdiction cannot be conferred jurisdiction by applying res judicata. The Court emphasized that "a question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court," and thus, the principle of res judicata did not apply.

The Court also noted that the earlier Division Bench's decision in Special Appeal No. 53 of 1984 was per incuriam as it did not consider the amendment to Section 20 by Act 18 of 1985. The Court concluded that the order of the Commissioner dated February 20, 1989, was without jurisdiction and non est, leading to the dismissal of the Special Appeal.

Conclusion:
The appeal was dismissed on the grounds that the Commissioner's order was without jurisdiction, and the appellant-assessee had no right to invoke the revisional powers under Section 20 of the Act. The principle of res judicata was found inapplicable in this context, reinforcing that jurisdictional errors cannot be cured by procedural doctrines.