9911796707
TMI Blog1963 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... rs from the date of the order of the Commercial Tax Officer. These two officers functioned under the old Act of 1939. The sequence of events which have led to the filing of the present appeal are briefly as follows: The appellants are dealers in non-ferrous metals consisting mainly of brass and copper. Their business consists of purchase of scraps, conversion of the scraps into circles and sheets in their factory and selling the manufactured products. In respect of the assessment year 1955-56 the Deputy Commercial Tax Officer, Park Town, determined their net turnover liable to tax as Rs. 24,35,134-3-3. They preferred an appeal to the Special Commercial Tax Officer, Madras City, the appellate authority which functioned under the Madras Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Ashok Leyland Limited. v. State of Madras(1) is well-founded or not. If the appellants can succeed in convincing this Court that the Board had no power to pass the order of 10th March, 1962, the Board's order must be struck down on this ground alone. The Board's powers of revision are contained in section 34 of the Madras General Sales Tax Act, 1959. We need not set down the provision as nothing turns upon its phraseology in this particular case. It is conceded by learned counsel for the appellants that the Board could in a proper case set aside the order of the Commercial Tax Officer or that of the Deputy Commercial Tax Officer. It is also clear that the Board would not be entitled to pass any order under section 34, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The former was only giving effect to the order of the latter as he was in law bound to do. He did not, and indeed he could not, exercise any discretion of his in the matter; and it can well be said that there was no decision or determination by him in regard to the quantum of assessment of the assessee. In the year 1958 when both the Commercial Tax Officer and the Deputy Commercial Tax Officer passed their respective orders dated 3rd March, 1958, and 19th March, 1958, the Act that was in force was the repealed Act of 1939. Section 11 of that Act prescribed the appellate power of the Commercial Tax Officer. That states that the appellate authority may, after giving the appellant an opportunity of being heard, pass such orders on the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be refunded to him without interest or the further amount of tax, if any, due from him shall be collected in accordance with the provisions of this Act, as the case may be." It is plain therefore that the order of the Deputy Commercial Tax Officer does not rest on any foundation apart from that afforded by the order of the Special Commercial Tax Officer dated 3rd March, 1958. In other words, the order of 19th March, 1958, has its roots in the order of the Commercial Tax Officer made on 3rd March, 1958. If the order of 3rd March, 1958, had become final under the Act, the limitation period of four years from that date having run out, the Board of Revenue would not be competent to interfere with it under the guise of revising the Deputy Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over. This however was not the subject-matter of their previous appeal before the Commercial Tax Officer. The Deputy Commissioner dismissed their objection by his order dated 21st August, 1954. The Board issued a notice to the assessees on 4th August, 1958, stating that it proposed to revise the assessment of the Deputy Commercial Tax Officer by including in the net turnover a sum which was wrongly excluded by that officer. The assessees pleaded the bar of limitation urging that four years bad elapsed from the date of the order of the Deputy Commercial Tax Officer dated 28th November, 1952, and that the Board had become functus officio. This was rejected by the Board on the ground that time should be computed not from 28th November, 1952, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. The Board was not competent on 10th March, 1962, to revise the order of the Commercial Tax Officer as four years had elapsed by that time. This bar of limitation cannot be got over under the pretext of revising the order of the Deputy Commercial Tax Officer which has no existence independently of the appellate order and which cannot operate proprio vigore. The Board cannot do indirectly what it cannot do directly. It is plainly impossible for the Board to rely upon the later consequential order of the Deputy Commercial Tax Officer for purpose of saving limitation. The Board therefore acted in excess of its jurisdiction. In the result, the appeal is allowed and the order of the Revenue Board is set aside. The appellants will have their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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