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TMI Blog1960 (11) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. For that year the Deputy Commercial Tax Officer, Kozhikode-II, determined the assessable turnover of the petitioner at Rs. 6,41,162 and the assessee preferred an appeal to the Commercial Tax Officer, Kozhikode. Pending appeal the Commercial Tax Officer issued a notice to the assessee under rule 17(3-A) of the Madras General Sales Tax Rules proposing to reopen the assessment on the ground that a turnover of Rs. 6,34,785 had escaped assessment. The assessee objected to this but the Commercial Tax Officer overruled the objection and held that a turnover of Rs. 6,19,764 had escaped assessment and therefore he finally determined the turnover of the assessee at Rs. 12,60,926. From this order there was an appeal to the Sales Tax Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and remanded the matter for fresh disposal. The present appeal is against the order of the Tribunal passed after remand. The question of law raised before us in this revision is regarding the validity of rule 13 of the Madras General Sales Tax (Turnover and Assessment) Rules. 4.. In both the cases the objection to the validity of the rule concerned is based on the ground of want of compliance with the provisions of section 19(4) of the Madras General Sales Tax Act. Section 19 confers power on the State Government to make rules to carry out the purposes of the Act. Sub-section (4) thereof reads: "The power to make rules conferred by this section shall be subject to the condition of the rules being made after previous publication for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment Pleader argues that section 7(e) of the Madras General Clauses Act applies to the present case and under the provisions of that sub-section the above rules are properly and validly made. Section 7 of the Madras General Clauses Act provides: "Where, by an Act to which this Chapter applies, a power to make rules is expressed to be given, subject to the condition of the rules being made after previous publication, the following provisions shall apply, namely: " The sub-clauses under this section provide for the manner of such previous publication and finally sub-clause (e) provides: "The publication in the Official Gazette of a rule purporting to have been made in exercise of a power to make rules after previous publication, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the General Clauses Act and the mere publication in the Official Gazette without the condition of previous publication being complied with will not save the rule under section 19(5) of the Sales Tax Act. 6.. In Batchu Sreeramulu Chetty v. The State of Andhra[1958] 9 S.T.C. 215., a Full Bench of the High Court of Andhra Pradesh, expressed the same view, that the exercise of the power by the Government to make rules under section 19 was itself subject to the condition that those rules were made only after previous publication and it was only after complying with such pre-publication that the rules had to be published in the Gazette under sub-section (5) and upon such publication alone the rules would have effect as if enacted under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment to make the rule and, therefore, the validity of a rule made in exercise of that non-existent power could be questioned." We respectfully agree with the above observations of the learned Chief Justice. 7.. In the above view we hold that rule 17(3-A) of the Madras General Sales Tax Rules and the substituted rule 13 of the Madras General Sales Tax (Turnover and Assessment) Rules are invalid since the provisions of section 19(4) of the Sales Tax Act are not complied with. Therefore we allow T.R.C. No. 92 of 1959 in part and set aside the order of the Commercial Tax Officer, Malabar South, Kozhikode, reopening the assessment on the petitioner and assessing him on an escaped turnover of Rs. 6,19,764. To this extent the assessment order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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