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TMI Blog1964 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ranches were included. It is not in dispute that sale of cotton yarn is taxable at a single point at the stage of the first sale. The first category of local purchases were accordingly second sales. The transfers of cotton yarn from the headquarters to the branches involved no sale transaction at all. The dealers had, nevertheless, been charged to tax in respect of these two categories of transactions, no doubt. based on their own erroneous returns. On the discovery of this fact, the respondents made an application to the Board of Revenue. They pointed out that the inclusion of these transactions was an accidental error, that this inclusion was discovered only in April, 1956, and that, since the payment of the tax in this regard was the result of a mistake and the dealers were not in a position to claim refund by way of appeal or otherwise, they sought the exercise of the powers of the Board of Revenue to examine the matter and direct a refund of the tax paid in excess. In the annexures to the petition, the full details were furnished. The Board examined the petition and accepted the validity of the contention of the petitioners, but, nevertheless, thought that the refund of excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication under section 12. Rejecting the contention of the State that the matter was not one which came within the scope of section 12 of the Act, the learned Judge allowed the petitions. The State appeals. Before us also, the same argument has been advanced. Firstly, it is claimed that it was not an application under section 12 of the Act that the respondent-dealer filed. It is even urged that under section 12(3) of the Act, which confers a power of revision upon the Board, the power is not exercisable against the order of the assessing authority but only against any order that might be passed or a proceeding recorded by the next lower authority to the Board, viz., the Deputy Commissioner of Sales Tax. Lastly, it is contended that the relief granted to the respondents was purely of an ex gratia nature and that, in those circumstances, the respondents are not entitled to ask for a greater relief than what the authorities purported to grant. The petition addressed by the dealers to the Board of Revenue sets out the facts and points out that by mistake certain sales and transfers of yarn from the headquarters to the branches had been included in the returns and that transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limitation imposed by sub-section (4) in regard to the suo motu exercise of the power does not affect the exercise of the power of revision on an application by the assessee. The contention of Mr. Ramaswami, learned Additional Government Pleader, is however, that the Board of Revenue has no power to revise the order of the assessing authority. That argument is supported by the following reasoning. Section 12(1) empowers the Commercial Tax Officer to call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him either suo motu or on application, and pass such order with respect thereto as he thinks fit. In a case where the assessee makes an application in this regard, such an application is maintainable only in a case where an appeal does not lie to the Commercial Tax Officer from the order of such subordinate authority. Likewise, the Deputy Commissioner and the Board of Revenue are conferred suo motu powers of revision. In the case of an application made by an assessee to revise an order, the Deputy Commissioner can pass such order "in respect of any order passed or proceeding recorded by the Comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of Revenue may suo motu call for and examine the record of any order, etc., of any officer subordinate to it, when it seeks to exercise its powers of revision on application, it can do so only in respect of any order passed or proceeding recorded by the Deputy Commissioner and in doing so, it is enabled to call for and examine the record of any order passed by any officer subordinate to it. This contention did not, however, find favour with the learned Judge. The learned Judge observed that the ambit and content of the power of revision contained in the latter part of sub-section (3) is common to both cases of suo motu revision and revision on application. While the scheme of sub-sections (1) to (3) appears to suggest a revision from the order of one authority to the next superior authority, that is to say, from the Deputy Commercial Tax Officer to the Commercial Tax Officer, from the Commercial Tax Officer to the Deputy Commissioner and from the Deputy Commissioner to the Board of Revenue, this feature did not, in the opinion of the learned Judge, limit the wide ambit of the revisional power of the highest authority, the Board of Revenue, against the orders or proceedings of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituted under the Act, is undoubtedly conferred the power of revising the order passed or proceeding recorded by any officer subordinate to it. The entire argument of the learned Additional Government Pleader is based upon this contention that the Board has no power under section 12(3)(ii) to deal directly with the order of the assessing authority, and if that contention fails, there is no doubt that the Board could examine and revise the order of the assessing authority. Some argument was advanced on the basis of section 12-A which deals with the appellate jurisdiction of the Appellate Tribunal. Broadly stated, an order relating to assessment passed by the Commercial Tax Officer, whether on appeal under section 11 or suo motu under section 12(1), can be taken in appeal to the Appellate Tribunal, but that is subject to the condition that the assessee had not preferred an application for the revision of the order under section 12(2) to the Deputy Commissioner. Likewise, an order passed by the Deputy Commissioner suo motu under section 12(2) can be appealed from before the Appellate Tribunal if the assessee had not sought to have that order revised by moving the Board under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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