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TMI Blog1960 (11) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... Iyer and Another v. State of Madras [1956] 7 S.T.C. 346. unenforceable and held that the tax should be assessed only at 3 pies per rupee. That decision of the Tribunal was rendered on 28th May, 1956. The excess amount of Rs. 936-1-2 that had been collected from the petitioner was refunded to him by adjustment on 30th September, 1956. The Madras General Sales Tax (Third Amendment) Act (XV of 1956), to which we shall refer hereafter as the Amending Act, received the assent of the President on 1st October, 1956, and was published in the Gazette on 8th October, 1956. Section 17 of the Amending Act validated assessments under the provisions of the proviso to section 3(1) of the Act before it was amended. In addition the Amending Act amended the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was erroneous. Section 17 of the Amending Act XV of 1956 could not validate the order of the Deputy Commercial Tax Officer dated 7th February, 1957. The finality of the original assessment for 1953-54 was under the order of the Tribunal dated 28th May, 1956, and that order directed assessment to tax not at the rate of 4 pies but at the rate of 3 pies per rupee. Section 17 of the Amending Act did not operate to set aside that order of the Tribunal or to revise the original assessment which the Tribunal had modified. The statutory finality of the assessment which flowed from the order of the Tribunal dated 28th May, 1956, was left untouched by section 17 of the Amending Act. The learned Government Pleader did not seek to support either the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act authorising a levy at 4 pies per rupee was the statutory provision in force in the year of assessment 1953-54. That provision should be deemed to have been in force from Ist August, 1949. But the Amending Act did not provide the machinery for giving effect to that amendment to the proviso to section 3(1). The machinery to give effect to the amendment had to be sought only in the provisions of the Act of 1939 and the rules thereunder. The question is whether rule 17(3) vested a jurisdiction in the Deputy Commercial Tax Officer to revise the original assessment which, as we have pointed out more than once, became final only with the order of the Tribunal on 28th May, 1956. The relevant portion of rule 17(3) runs: "If for any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith jurisdiction to revise the assessment if for any reason the original assessment was at too low a rate. The words "if for any reason" appear very wide. The question is, are they wide enough to enable the assessing authority to revise not his assessment but an assessment made final by an order of a higher authority, in this case the Tribunal. If we examine the scheme that appears to underlie sub-rules (1), (1-A), (3) and (3-A) of rule 17-it should be remembered that sub-rule (3-A) takes in both sub-rules (1) and (3)-it seems clear to us that rule 17(3) does not authorise the assessing authority to revise the assessment ordered or finalised by a higher authority. In our opinion, under rule 17(3) the assessing authority can revise only hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another assessee B the view of the High Court is overruled by the Supreme Court, can the assessing authority revise the assessment of assessee A, disturbing under rule 17(3) the finality that had attached to the assessment of A under the order of the High Court. In such cases it should be remembered the Tribunal and the Courts only declare what the law has always been. The amendment of the law by the Legislature with retrospective effect can make no difference in principle. Legislation by recourse to a statutory fiction says that that was the law in the relevant period, though factually it was not. While rule 17 permits revision by the Departmental authorities, it should be noted that neither the Tribunal nor the High Court can revise its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T.C. 443. , Rajagopala Aiyangar, J., pointed out that there was no machinery to demand a payment of the sales tax refunded to an assessee under similar circumstances. Neither the Act nor the Amending Act provided a machinery for effecting recovery of the amount refunded without a revision of assessment. Rule 18(1) provided for rectification, but that machinery was not availed of in this case, and it could not have been availed of by the Deputy Commercial Tax Officer. The machinery provided for revision of assessment in rule 17(3) could not have been availed of in this case by the assessing authority to revise not his order of assessment but that of the Tribunal. In our opinion the order passed by the Deputy Commercial Tax Officer and u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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