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TMI Blog1969 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... why the nil assessment should not be set aside and the Sales Tax Officer be directed to make further investigation in the matter. The petitioner appeared and objected, but the Deputy Commissioner overruled his objection, set aside the nil assessment and directed the Sales Tax Officer (since the escaped turnover was above Rs. 20,000) to make further investigation with a view to assess the escaped turnover. The petitioner took up the matter in appeal before the Appellate Tribunal; and the Tribunal confirmed the aforesaid decision of the Deputy Commissioner. In revision, the correctness of the order of the Appellate Tribunal is challenged. The argument of the counsel of the petitioner, put in a nutshell, is that the power of revision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the record for determining whether the order of assessment was according to law. Rule 17 confers power to assess escaped turnover which may normally be exercised on matters de hors the record of assessment proceedings before the Deputy Commercial Tax Officer." The Supreme Court said further towards the end of the judgment: "That section [section 12(2)] deals with another state of affairs and another jurisdiction, i.e., where the Deputy Commissioner suo motu or on an application made calls for the record and determines the legality or propriety of an order made by one of the subordinate officers. It cannot be said in view of rule 17 that the power of revision by the Deputy Commissioner is limited to powers under section 12(2). Rule 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case(1) and quoted with approval a passage therefrom, a portion of which we have already extracted. The reasoning of the Supreme Court therein is on the same lines as the reasoning in Cheria Abdulla's case(1). The fourth decision is again in a case from this State, and that is The Deputy Commissioner of Agricultural Income-tax and Sales Tax. Quilon v. M/s. Dhanalakshmi Vilas Cashew Co., Quilon[1969] 24 S.T.C. 491 (S.C.); [1969] 1 S.C.W.R. 610. The Supreme Court referred to its earlier decision in Appukutty's case[1963] 14 S.T.C. 242 (S.C.). and followed the same. The last decision is again in a case from Kerala: The State of Kerala v. K.E. Nainan[1970] 26 S.T.C. 251 (S.C.). (Civil Appeals Nos. 2209 and 1777 of 1966). In this last decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 K.L.R. 137; 1965 K.L.T. 254. The learned Judge was considering in that case section 16 and rule 33 of the Sales Tax Act of 1125 of Kerala, and the learned Judge observed: "It is a well-known canon of construction that when a special power is given to an authority and also a general one, the authority can only exercise the special power when the facts attracting the exercise of that power arise." The next decision is by another learned Judge of this court, and that is K. Sarvothama Srinivasa Shenoy Co. v Deputy Commissioner of Agricultural Income-tax and Sales Tax, Kozhikode1965 K.L.T. 304. In that case the learned Judge was considering section 12(2) and rule 17 of the Madras General Sales Tax Act of 1939; and the learned Judge follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not apply. We endorse this view. We also add that the reasoning in Sarvothama Srinivasa Shenoy's case1965 K.L.T. 304.-that there is overlapping of the powers-is not correct, because the powers operate in two fields and the revisional power cannot trench upon the power to assess escaped turnover. Still further, we point out that even in the last case-the case of M/s. Vazhakkala Rubbers1968 K.L.R. 726.-a small error has crept into the judgment. The learned Judge says in considering the decisions of the Supreme Court in Appukutty's case[1963] 14 S.T.C. 242 (S.C.). and Cheria Abdulla's case[1965] 16 S.T.C. 875 (S.C.).: "This court reaffirmed its original view. Though the decision of this court in the first case was set aside by the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion before us in the following manner: that the revisional power of the Deputy Commissioner and the power of the Sales Tax Officer to assess escaped turnover are two different and distinct powers-two independent jurisdictions; that these two powers operate in two different fields; that the power of revision of the Deputy Commissioner cannot trench upon the power of the Sales Tax Officer to assess escaped turnover; and that in exercising the revisional power, the Deputy Commissioner may call for the records, and, on perusing them, if he finds that the order of the Sales Tax Officer is illegal, irregular or improper, may direct even a further investigation, but such further investigation cannot trench upon any power conferred by the Act or th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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