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TMI Blog1962 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to await the decision of the Supreme Court in Gannon Dunkerley's case wherein it was finally laid down that the turnover of sales in a canteen primarily run for the benefit of the workers in a factory did not represent taxable turnover in the course of business liable to sales tax. While the appeal was still pending, the Commercial Tax Officer in the exercise of his powers of revision under section 12 of the Madras General Sales Tax Act, 1939, issued a notice and revised the order of assessment. He did not however deal with the appeal that was before him at the same time. That revision order dealt with the turnover other than the turnover of the sales at the canteen. Against this order made in revision an appeal was taken to the Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suo motu revision by the Commercial Tax Officer, the original order of assessment was still in force. Relying upon certain decisions, to which reference will be made in due course, the Tribunal came to the conclusion that the revised order of assessment took the place of the original order of assessment and that it is not open to the assessee to contend that a portion of the original order of assessment is still at large for being dealt with in an appeal therefrom. The Tribunal observed: "Normally when an appeal is pending before the Commercial Tax Officer and he also resorts to the course of suo motu revision, a combined order is passed, so that the aggrieved assessee can canvass both the revision as well as the appeal in an appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is against this order that the present revision petition has been filed. All the authorities including the Tribunal appear to be fully conscious of the fact that the procedure adopted by the Commercial Tax Officer was wholly erroneous and improper. Under the 1939 Act the Commercial Tax Officer is both an appellate and a revisional authority. There was an appeal pending before him from the order of assessment in so far as the turnover of the canteen sales was concerned. At the same time the Commercial Tax Officer, as the revisional authority issued a notice seeking to revise the order of assessment to the extent to which he thought that that part of the turnover other than canteen sales required to be modified. It is no doubt true tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s terms. It was from that order that an appeal was brought to the Sales Tax Appellate Tribunal and the question is whether the Sales Tax Appellate Tribunal was right in the view that it took that the remedy by way of appeal which the law gives to an assessee stands destroyed by reason of the improper procedure adopted by the department. In State of Madras v. India Coffee Board, Batlagundu [1960] 11 S.T.C. 1., it was laid down by a Bench of this Court that though the statute envisages two sets of remedies, appeals and revision, the former being available only to the taxpayer and the latter both to the taxpayer and the State, the order of assessment itself is not treated as a severable one with respect to each item of the total turnover. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner had no longer any power to reopen that assessment. It was this contention that was accepted by the High Court. It will be noticed that suo motu power of revision given to the Deputy Commissioner was to revise any order of a subordinate authority, that is the Commercial Tax Officer, and when no order of that subordinate authority was available that power of revision came to an end. That was the principle upon which the decision proceeded. We are unable to apply it wholly to the present case. In another decision, Madura Mills Co. Ltd. v. State of Madras[1962] 13 S.T.C. 124., we referred to this decision and pointed out that the limit of revisional jurisdiction conferred by section 12 was confined by the expression "legality, prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment which had been impliedly dismissed by the Commercial Tax Officer. The Tribunal overlooking this feature and the circumstance that it dealt with only the revised part of the assessment did not give an effective disposal to the disputed part of the turnover, the dispute with regard to which was at no time adjudicated upon. When all the Tribunals constituted under the Act were conscious of the fact that one part of the turnover was the subject-matter of an appeal and was pending disposal, we can see no principle either of equity or of law which compels us to hold that the right of the assessee to be afforded relief against the taxation of a part of the turnover which has been declared to be illegal by the highest Court of the land shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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