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TMI Blog1980 (12) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxes exercised suo motu powers conferred on him under section 32 of the Act and revised the order of the Sales Tax Officer by levying sales tax at the rate of 9 per cent under item 41 of the First Schedule to the Act. Against this order of the Deputy Commissioner, the petitioner preferred an appeal before the Appellate Tribunal. The appeal was dismissed as timebarred. Thereafter, the petitioner invoked the suo motu powers of revision conferred on the Board of Revenue under section 34 of the Act. The Commissioner for Land Revenue and Commercial Taxes, by his order dated 14th December, 1977, has dismissed the revision petition and hence this writ petition. Section 34 of the Act reads as follows: "(1) The Board of Revenue may, of its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Land Revenue and Commercial Taxes in dealing with the revision petition filed by the petitioner on the merits. A similar question arose for consideration before the Supreme Court in Board of Revenue v. Raj Brothers Agencies[1973] 31 S.T.C. 434 (S.C.). The head-note of the decision reads as follows: "The power of revision under section 34 of the Madras General Sales Tax Act, 1959, is conferred on the Board to remedy any injustice. It is, therefore, open to an assessee or the revenue to bring to the notice of the Board any error made by the subordinate authorities. In Erode Yarn Stores v. State of Madras [1963] 14 S.T.C. 724. , the Madras High Court accepted the State's contention that before the jurisdiction of the Board to exercise it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exist, the Deputy Commissioner cannot decline to exercise that power. Otherwise, he can be compelled to exercise that power by issue of a writ of mandamus by the High Court. Such being the scope, extent and width of that power, it is incorrect to state that the power can be exercised only by the authority vested with that power. If the Deputy Commissioner fails to exercise his jurisdiction under section 32, any person aggrieved could move the Deputy Commissioner to exercise the suo motu power of revision. An appeal contemplated under section 32(2)(b) must be an effective appeal and not one which was rejected or refused to be entertained on the ground of limitation. Where, therefore, an appeal before the Appellate Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles laid down by the Supreme Court in Board of Revenue v. Raj Brothers Agencies[1973] 31 S.T.C. 434 at 437 (S.C.). as well as in Arunachalam Pillai v. State of Tamil Nadu[1980] 45 S.T.C. 109 (F.B.). However, Mr. Bakthavatsalam, though would agree that the Full Bench decision would squarely apply to the facts of this case, would argue that the decision in Board of Revenue v. Raj Brothers Agencies[1973] 31 S.T.C. 434 at 437 (S.C.). has ruled that in cases where an Appellate Tribunal has dismissed an appeal on the ground that it was barred by limitation, the Commissioner could exercise his discretion not to interfere with the order sought to be revised if he found that the matter was not fit for his interference. The learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal before the Appellate Tribunal within the period of limitation. I understand this passage to mean that the Supreme Court ruled that it was the duty of the Commissioner to go into the merits of the case and interfere with the order if it found that the justice of the case required such interference. I fully agree with great respect in this context with the observation of Venugopal, J., in the Full Bench decision in Arunachalam Pillai v. State of Tamil Nadu[1980] 45 S.T.C. 109 (F.B.). to the following effect: "The Deputy Commissioner could not decline to exercise his revisional jurisdiction under section 32 on the ground that the assessee was not diligent in filing an appeal. If he was diligent in preferring an appeal, there wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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