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TMI Blog1964 (9) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that the turnover of Rs. 6,66,700-14-3 ought not to have been included in the original assessment. The Deputy Commissioner of Commercial Taxes, Coimbatore Division (suo motu), exercised his powers of revision under section 32 of the Act, and, by his order dated 3rd July, 1961, he restored the original order of the Deputy Commercial Tax Officer dated 12th February, 1954, and determined the turnover at Rs. 7,68,298-1-0 after hearing the objections of the petitioners. The petitioners preferred an appeal to the Sales Tax Appellate Tribunal from this order of the Deputy Commissioner, but without success. The present revision has been filed against the order of the Appellate Tribunal. Learned counsel for the petitioners advanced some arguments on the merits with a view to establish that the second order by the Deputy Commercial Tax Officer refixing the turnover at Rs. 1,01,597-2-9 was the correct order and that the Deputy Commissioner had erred in setting aside that order in revision. It is unnecessary to advert to the arguments of learned counsel on this aspect of the matter, as we are of the opinion that the revision is liable to be dismissed on a more fundamental ground. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he officer himself. The Bench pointed out that the only order that was in force was the order of the Appellate Assistant Commissioner and the original order of assessment was no longer subsisting. It follows therefore that the second order passed by the Deputy Commercial Tax Officer on 30th November, 1957, exercising powers under rule 18 aforesaid is without jurisdiction. As observed earlier, it is in this view that, we think, it is unnecessary to consider the correctness of the order dated 30th November, 1957, on its merits. Learned counsel for the assessee, recognising this position, has really no answer to the objection on behalf of the State. Learned counsel would, however, contend that the powers of revision of the Deputy Commissioner are circumscribed by the limits specified in section 32 of the Act and that it is only in the case of an order passed or proceeding recorded by the appropriate authority under sections 12, 14 and 15 or sub-section (1) or (2) of section 16 that the Deputy Commissioner can exercise the powers of revision. He urges that the order passed by the original assessing authority under rule 18 of the Madras General Sales Tax Rules of 1939 would correspond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to why the Legislature should have made such a departure in the Act of 1959, as to take away the powers of revision in such a situation. The acceptance of the contention of learned counsel for the assessee would result in absurd and very inconvenient results. Under the Act of 1959, it will be seen that there is no provision for the department to take up the matter to any appellate or revisional authority functioning under the Act. Section 33 would apply only to an assessee and not to the department. Sections 34 and 35 of the Act, on their own language, again would not cover a situation like the instant case, and the department would have no right to file a revision to the Board of Revenue. Equally, under section 36 of the Act, the department will have no right of appeal to the Tribunal. The position is the same even with reference to the right of appeal to the High Court under section 37. The right of revision provided in section 38 will have no operation at all, if the assessing authority passes an order under section 55 in favour of the assessee, as there will be no occasion for him to take up the matter to a higher authority either appellate or revisional. The net result there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt that the decisions rendered under the Income-tax Act may not be of decisive guidance under the Sales Tax Act. Even so, we are of the opinion that the decisions relied upon by learned counsel for the petitioner far from supporting his contention, are against him. We shall first take up the decision of the Supreme Court in Commissioner of Income-tax v. Arunachalam Chettiar[1953] 23 I.T.R. 180. , on which counsel placed considerable reliance. In that case, the assessee preferred an appeal to the Appellate Tribunal against the disallowance of certain expenses by the Income-tax authorities. The Tribunal partly allowed the appeal, allowing two items of expenses in favour of the assessee. As per the directions of the Appellate Tribunal, the Income-tax Officer made a recomputation, but he also included a certain sum of unassessed foreign income of earlier years remitted to India during the year of account. The assessee appealed to the Appellate Assistant Commissioner, who declined to admit the appeal, on the ground that there had been no assessment under section 23 and therefore there would be no right of appeal under section 30. The assessee filed an application to the Appellate Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubtraction or additions in arithmetic in pursuance of the mandate of the appellate authority, the order of the Income-tax Officer could not be said to be a fresh order of assessment within the meaning of section 23, so as to attract a right of appeal under section 30. Das, J., delivering the judgment of the Court put the matter thus: "It is, therefore, clear that in order that the Appellate Assistant Commissioner may exercise his jurisdiction and make an order under section 31, there must be an appeal as contemplated by section 30. The learned Attorney-General only relies on the opening part of sub-section (1) of section 30 and contends that the appeal before the Appellate Assistant Commissioner was with respect to the amount of income assessed under section 23 or section 27. It will be recalled that the Appellate Tribunal held that the two sums claimed by the assessee would be allowed to him and concluded by saying that the appeal was partly allowed. The power of the Appellate Tribunal under section 33(4) is indeed wide, for on an appeal properly before it, it can make such order as it thinks fit. Therefore, the order made by the Appellate Tribunal in this case on 20th August, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case. The question of right of appeal under section 30 read with section 23 of the Income-tax Act is different from the ambit of a right to ask for a reference under section 66 of the Act. Learned counsel next relied upon a Bench decision of this Court in Commissioner of Income-tax v. Vellingiri Gounder[1953] 24 I.T.R. 166. In that case, the Income-tax Officer, acting under section 35, rectified certain mistakes in his original order of assessment and enhanced the assessable income after giving notice to the assessee. The assessee preferred an appeal against the order but the Appellate Assistant Commissioner dismissed the same holding it to be incompetent. On further appeal to the Tribunal, the Tribunal held that the appeal to the Appellate Assistant Commissioner was competent and remanded the case. On reference, the High Court held that no appeal lay to the Appellate Assistant Commissioner against the order of the Income-tax Officer under section 35 and therefore no appeal lay to the Appellate Tribunal against the order of the Appellate Assistant Commissioner. The Bench, in its brief judgment, took the view that the decision of the Supreme Court in Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice that is issued is one that is referable to section 22(2) and therefore the assessee will have the same rights of revision and appeal, as in the case of section 34(1)(a). Gajendragadkar, C.J., delivering the judgment, put the matter thus: "If section 22 is held to be inapplicable to proceedings under section 34(1A), the consequence would be entirely irrational and fantastic. The powers conferred on the Income-tax Officer under section 23(2) to take evidence would then not be available to him, and, indeed, all the powers prescribed and the procedure laid down by section 23 would become irrelevant. Likewise, the provisions in regard to appeals and revisions contained in sections 30, 31, 33, 33A and 33B would also be inapplicable. As we have already seen, the inapplicability of these provisions is the main foundation of the attack against the validity of section 34(1A). It is, however, urged that though the specific powers conferred by section 23 may not be available to the Income-tax Officer, he may, nevertheless, exercise similar powers, because the authority to assess must itself include such powers as incidental to assessment. The best judgment assessment which is authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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