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TMI Blog1987 (5) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... this in a clarification (exhibit P4) issued by them to M/s. Printocraft of Cochin. Based on these decisions as also the clarification made by the Board of Revenue, the petitioner filed applications before the assessing authority, the first respondent, under section 43 of the Act requesting him to rectify the mistake in the assessments for the three years aforesaid by reducing the rate of tax applied from the single point rate of 8 per cent to the multi-point rate. The assessing authority, however, bypassed the request with reply that the assessments could not be rectified as "disputed questions" were involved. The petitioner, therefore, moved the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Palghat, the 2nd respondent, invoking his suo motu power of revision under section 35 of the Act "to cure illegality in the assessments" by setting aside the same and directing fresh assessments applying the correct rate of tax. Those applications are exhibits P5, P6 and P7. They, however, met with swift dismissal at the hands of the 2nd respondent by his order, exibit P8, on the ground that the impugned orders of assessment were appealable and that suo motu powers could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n application for revision of such order or proceeding to the Deputy Commissioner." 6.. The contention of Shri K.C. Balagangadharan, counsel for the petitioner, is that an assessee could also invoke section 35 and that, even in relation to orders or proceedings which are appealable, and hence not revisable under section 36. According to him, the assessee is entitled to bring to the notice of the Deputy Commissioner any illegality or impropriety in the order or proceeding of any officer or subordinate authority (other than the Appellate Assistant Commissioner) and when this is brought to his notice, the Deputy Commissioner is bound to exercise his power of revision and set right the illegality or impropriety, though suo motu. He sought to substantiate his contention with reference to three decisions, Board of Revenue v. Raj Brothers Agencies [1973] 31 STC, 434, Bombay Ammonia Pvt. Ltd. v. State of Tamil Nadu [1976] 37 STC, 517, both of the Supreme Court, and Arunachalam Pillai and Sons v. State of Tamil Nadu [1980] 45 STC 109, of a Full Bench of the Madras High Court. I may point out even at this stage that all these cases arose under the corresponding provisions in the Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cabined or confined by conditions and qualifications. The purpose of such an amplitude being given suo motu revisions appears to be as much to safeguard the interests of the exchequer as in the interests of the assessee." 11.. I may only add that the Supreme Court, in the case of Bombay Ammonia Pvt. Ltd. [1976] 37 STC 517, expressed the opinion, (with reference to the corresponding provision-section 32 of the Tamil Nadu Act) that the suo motu power of revision was of wide amplitude and could be exercised in favour of the Revenue as well as the taxpayer in order to correct any error or illegality committed by the assessing authority in his order of assessment. There can therefore be no doubt that section 35 is intended to reach at any error, illegality or impropriety in orders or proceedings, of a subordinate authority, and that the power could be exercised for or against the assessee. 12.. The further question is whether this power could be invoked by an assessee to get an adverse order revised by the Deputy Commissioner. Before I deal with this question, I shall briefly point out the correspondence between the relevant provisions of the Kerala Act and those in the Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion could be exercised both for the benefit of the State and the taxpayer, the Deputy Commissioner should have gone into the question of exemption and set right the assessment. 16.. The Revenue took up the matter in revision to the High Court. The High Court allowed the revision in part and set aside the order of the Tribunal in so far as it directed modification of the assessment by deleting the turnover relating to works contracts. The decision of the High Court is reported in State of Madras v. Bombay Ammonia Ltd. [1974] 34 STC 364 (Mad.). 17.. The court noted that the Deputy Commissioner had not rejected the assessee's claim on the ground that he had no jurisdiction to deal with it. He had on the other hand, refused to give the relief because the assessee had not chosen to question the assessment at any stage before and that "the assessment made was on their own invitation". 18.. The assessee went up in appeal to the Supreme Court. The Supreme Court dealt with the scope of the suo motu power and observed: "The language of this section makes it clear that the suo motu power conferred on the Deputy Commissioner in regard to the order or proceeding specified therein is qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision could be invoked by an assessee to set aside an order of assessment. In this case, the appeals filed by the assessee against the assessments for the years 1969-70 and 1970-71 were dismissed by the Appellate Assistant Commissioner for the reason that they were not filed in time. The appeals filed therefrom before the Appellate Tribunal were also dismissed as timebarred. The assessee thereupon filed petitions before the Deputy Commissioner under section 32. These revision petitions were rejected by the Deputy Commissioner on the ground that there were no extraordinary circumstances to invoke the revisional power under section 32. The assessee's appeals to the Tribunal failed and the matters came up to the High Court in revision. The first question posed for decision was whether the suo motu power could be invoked by the assessee. The department's contention, as it was before me, was that in view of the specific provision contained in section 33, the suo motu power of revision under section 32 could not be invoked at the instance of the assessee. The court dealt with the matter referring to the decision of the Supreme Court in Board of Revenue v. Raj Brothers Agencies [1973] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of by the subordinate authority, may suo motu act and exercise the power under section 20 of the Act. By the mere fact that an application is filed by an aggrieved party, the power to act suo motu in respect of any proceeding taken by the subordinate authority to the Commissioner is not divested from the Commissioner. Exercise of suo motu powers does not imply that the Commissioner cannot look into any application forwarded to him and refuse to call for the records." 22.. 1 may incidentally mention the following decisions where the right of the assessee to invoke the suo motu power of revision has been affirmed: G.R. Byappa and Sons v. State of Mysore [1969] 24 STC 34 (Mys), Burmah Shell Oil Storage and Distributing Company of India Ltd. v. Commissioner for Commercial Taxes [1973] 32 STC 207 (Mad.), Coimbatore Murugan Mills Ltd. v. Board of Revenue [1976] 37 STC 622 (Mad.) and Paper Products Ltd. v. Assistant Commissioner, Commercial Taxes [1973] 32 STC 208 (Cal). 23.. The decision of the Division Bench of the Calcutta High Court in State of West Bengal v. Paper Products Ltd. [1986] 61 STC 42 relied on by the Revenue now requires to be considered. It is an appeal from the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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