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TMI Blog1979 (8) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a decision of this Court, which was overruled by the Supreme Court in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd.(1) The assessee filed an appeal against the order of the Appellate Assistant Commissioner only in respect of the item on which it had lost. During the pendency of this appeal, there was no petition for any enhancement filed before the Tribunal on behalf of the State. The Tribunal disposed of the appeal in favour of the assessee. But with reference to the items on which the Appellate Assistant Commissioner had passed an order in favour of the assessee, the Board took up suo motu revision proceedings and held that these items were liable to be taxed in view of the decision of the Supreme Court in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Company of India Ltd.(1) In the present appeal, the assessee challenges this order of the Board of Revenue on the ground that the Board had no jurisdiction to revise the order of the Appellate Assistant Commissioner when once the order of the Appellate Assistant Commissioner was made the subject of appeal to the Sales Tax Appellate Tribunal. The learned counsel for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Justice for orders as to the constitution of a Full Bench. In pursuance of the abovesaid order of reference the case came on for hearing before the Full Bench. C. Natarajan, for the appellant. The Additional Government Pleader, for the respondent. JUDGMENT The judgment of the Court was delivered by ISMAIL, J.-This is an appeal under section 37 of the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959), against the order of the Board of Revenue dated 26th August, 1974, suo motu revising the order of the Appellate Assistant Commissioner. When the matter came up for hearing before a Bench of this Court consisting of Sethuraman and Balasubrahmanyan, JJ., the learned counsel for the appellant-assessee contended that since against the order of the Appellate Assistant Commissioner, the appellant-assessee itself had preferred an appeal and that appeal had been disposed of, the Board of Revenue has no jurisdiction under section 34 of Act 1 of 1959 to revise the order of the Appellate Assistant Commissioner. For this purpose, the appellant relied on a Bench decision of this Court in Jeewanlal (1929) Ltd. v. State of Tamil Nadu(2). The (1) (1978) 2 I.T.J. 243; [1980] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State itself had filed a tax case in the High Court against the said decision and that in that situation the Board of Revenue could not invoke its revisional jurisdiction under section 34 of the Act because of the restriction contained in section 34(2)(b) of the Act. The Board of Revenue overruled this objection and revised the order of the Appellate Assistant Commissioner. It is against the order of the Board of Revenue that the present appeal has been filed by the dealer. As far as the relevant provision of the Tamil Nadu General Sales Tax Act is concerned, there is a direct decision of this Court in Jeewanlal (1929) Ltd. v. State of Tamil Nadu(3) to the effect that under such circumstances the Board of Revenue has no jurisdiction to revise the order of the Appellate Assistant Commissioner. As we pointed out already, the Bench took the view that there was an apparent conflict between this decision and its own decision in Puthuthotam Estates (1943) Ltd. v. State of Tamil Nadu(1). We shall now have to consider whether there is a (1) [1978] 2 I.T.J. 243; [1980] 125 I.T.R. 41. (3) [1978] 42 S.T.C. 263. (2) [1973] 31 S.T.C. 426 (S.C.). conflict at all, and, if there is a conflict, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed. (3) In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard, (a) in the case of an order of assessment(i) confirm, reduce, enhance or annul the assessment or penalty or both; (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as it may think fit; or (b) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal against an order of the Appellate Assistant Commissioner or the Deputy Commissioner, the assessing authority shall have the right to be heard either in person or by a representative: Provided further that, if the appeal involves a question of law on which the Appellate Tribunal has previously given its decision in another appeal and either a revision petition in the High Court against such decision or an appeal in the Supreme Court against the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not justified by the wording of the section. The Tribunal was right in saying that the Deputy Commissioner interfered without jurisdiction." In Jeewanlal (1929) Ltd. v. State of Tamil Nadu[1978] 42 S.T.C. 263., the Bench followed another Bench decision of this Court in C. Gnanasundara Nayagar v. Commissioner of Income-tax[1961] 41 I.T.R. 375., dealing with the scope of the revisional powers under section 33A(2) of the Income-tax Act, 1922. After expressing its agreement with the above view of the Bench construing the scope of section 33A(2) of the Income-tax Act, 1922, the Bench observed: "....... we feel that section 34(2)(b) is a complete ban preventing the Board of Revenue in acting and exercising the power of revision under section 34 once an appeal had been taken from the order of the Appellate Assistant Commissioner which is the order with which we are concerned in this case." We are of the opinion that on the language of section 34(2)(b) of Act 1 of 1959, if we may say so with respect, the decision of the Bench was correct. The ban under section 34(2)(b) is a complete one, namely, the moment the order of the Appellate Assistant Commissioner has been made the subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard: Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee. (2) The Commissioner shall not revise any order under sub-section (1) if- (a) where an appeal against an order lies to the Appellate Tribunal, the time within which such appeal may be made has not expired; or (b) where an appeal against the order has been made to the Appellate Tribunal, the appeal is pending before it; or (c) the order has been made more than three years previously." Even though section 34(2)(b) of this Act can be said to correspond to section 34(2)(b) of the Tamil Nadu General Sales Tax Act, 1959, still there is a vital difference in the language. As we saw, under section 34(2)(b) of the Tamil Nadu General Sales Tax Act, 1959, once the order of the Appellate Assistant Commissioner has been made the subject of an appeal before the Appellate Tribunal, the power of the Board of Revenue to interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tam Estates (1943) Ltd. v. State of Tamil Nadu(1978) 2 I.T.J. 243; [1980] 125 I.T.R. 41. stated as follows: "As rightly pointed out by the learned Additional Government Pleader, the restrictions imposed on the powers of the Commissioner are under clauses (a), (b) and (c) of sub-section (2) of section 34. Clause (a) applies to a case where an appeal against an order lies to the Appellate Tribunal and the time for such an appeal has not expired. In the present case, it is not in dispute that an appeal could have been filed before the Appellate Tribunal at the instance of the Commissioner, but the time for such an appeal has already expired. Therefore the restriction imposed by clause (a) has no scope for application. Clause (b) applies to a case where an appeal against the order has been made to the Tribunal and the appeal is pending before it. In the present case, as can be seen from the dates given earlier, the Tribunal had already disposed of the appeal by the time the Commissioner took the revision proceedings. It therefore implies that clause (b) also does not apply." Consequently, on the language of section 34(2)(b) of the Tamil Nadu Agricultural Income-tax Act, 1955, the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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