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TMI Blog1987 (2) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... of machinery. The assessee filed an appeal before the Appellate Assistant Commissioner disputing the assessment made on the above two items. The Appellate Assistant Commissioner by his order dated 29th August, 1975 confirmed the assessment made at Rs. 2,862 towards the sales of machinery and out of the disputed turnover of Rs. 5,23,375.20 he gave relief to a turnover of Rs. 4,51,000. The Board of Revenue by exercising its power under section 34 of the Tamil Nadu General Sales Tax Act, 1959, after notice to the erstwhile partners of the appellants since the partnership had since stood dissolved and after hearing the submissions made by the partners of the assessee, revised the orders of the assessing officer and the Appellate Assistant Commissioner and determined the taxable turnover at Rs. 35,01,984. The Board of Revenue have come to the conclusion that the sales of M.S. rounds, manufactured out of local purchases of iron scrap, are also liable to tax though the iron scrap suffered tax earlier in view of the decision of the Supreme Court reported in Pyare Lal Malhotra's case [1976] 37 STC 319. The present appeal is against the order dated 30th June, 1978 of the Board of Revenue by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in East India Corporation v. State of Madras [1973] 31 STC 330 (Mad.). Further it is submitted that it is not a case of original assessment by the Board of Revenue but a case of bringing to tax certain turnover to which exemption was granted wrongly. Under the power of revision the Board can reassess the previous turnover, for which the learned Government Pleader relied on R.K. Jamini Ranjan v. Member, Board of Revenue [1976] 38 STC 1 (SC). As regards the third submission, the learned Government Pleader submitted that it is not a case of actual revision of the Appellate Assistant Commissioner alone but the order of the assessing officer also and therefore, Rajagopala Naicker v. Government of Pondicherry [1977] 40 STC 228 (Mad.) is not applicable to this case, which arose under the Pondicherry General Sales Tax Act. Further there is no substance in the last ground and that the proposal was to revise the order of the assessing officer as well as the appellate authority, and therefore, it cannot be contended that only one of the orders alone can be revised. 5.. The learned counsel for the appellants mainly relied on Velayutha Raja v. Board of Revenue [1970] 26 STC 176 (Mad.) whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is illegal or improper or whether the proceedings are irregular, as laid down in State of Kerala v. Cheria Abdulla and Company [1965] 16 STC 875 (SC) which considered the Kerala General Sales Tax Act and Rules. Factually in this case, the original assessment was not revised under section 16 of the Act before that assessment was subject to revision by the Board of Revenue. Moreover, there is no estimate made by the Board of Revenue in the instant case unlike the cases cited above. This is a case of withdrawing the exemption by the Board of Revenue with respect to a turnover which was wrongly given by the assessing officer. Here the turnover has been already determined by the assessing officer. The question that was to be decided was whether the exemption granted by the assessing officer with respect to certain turnover was legally correct. Therefore, the decisions cited above will not apply to this case. In the decision reported in East India Corporation Ltd. v. State of Madras [1973] 31 STC 330 a Bench of this Court consisting of Ramanujam, J., and V. Ramaswami, J. [as pointed out already, Ramanujam, J., was a party to the earlier decision in [1970] 26 STC 176 (Velayutha Raja v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contemplated by the section, there would be no error in the exercise of jurisdiction." In the decision reported in Kutty Flush Doors and Furniture Co. (P.) Ltd. v. State of Tamil Nadu [1984] 57 STC 74 (Mad.) it is held that under section 32 of the Tamil Nadu General Sales Tax Act the Deputy Commissioner is not confined to the examination of the order proposed to be revised and he can take information from outside the order for the purpose of effectively exercising his powers of revision and he can further peruse the record extraneous to the assessment. With respect to similar provision under the Bengal Finance (Sales Tax) Act, 1941 the Supreme Court held in R.K. Jamini Ranjan Pal Pvt. Ltd. v. Board of Revenue [1976] 38 STC 1 that the power of revision can easily be equated with the power exercisable by the appellate authority in an appeal, and therefore, in exercise of revisional power, the Commissioner can reassess the turnover by roping escaped items of turnover and thereby enhance the gross turnover. 7.. On a consideration of the above decisions, we are of the view that sections 16 and 34 of the Tamil Nadu General Sales Tax Act are independent and the limitation prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the said decision cannot have any assistance to the present case which arises under the Tamil Nadu General Sales Tax Act. Section 37 of the Pondicherry General Sales Tax Act cannot be equated to section 34 of the Tamil Nadu General Sales Tax Act. Hence, we are of the view that the third submission made by the learned counsel for the appellants has to be rejected and is accordingly rejected. 9.. As regards the last contention, referring to section 34 of the Act the learned counsel for the appellants submitted that the word "or" used therein implies that the Board of Revenue could revise either the order passed by the assessing officer or the order passed by the Appellate Assistant Commissioner and the Board of Revenue cannot interfere both the orders at the same time since admittedly it is not a case where there is a merger of the original order with the order passed by the Appellate Assistant Commissioner. Section 34 of the Act (before amendment) runs as follows: "34. Special Powers of Board of Revenue.-(1) The Board of Revenue may, of its own motion, call for and examine an order passed or proceeding recorded by the appropriate authority under section 4-A, section 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee appealed against the rejection of the assessing authority to the appellate authority, viz., the Appellate Assistant Commissioner, with respect to Rs. 70,000 and odd for which exemption was denied by the assessing officer. The Appellate Assistant Commissioner allowed the appeal. Thereafter, the Board of Revenue, in exercise of power of revision under section 34 of the Act, set aside the exemption granted to the assessee on the entire turnover of six lakhs and this order was within a period of four years from the date of the order of the Appellate Assistant Commissioner, but beyond the period of four years from the date of the assessment order. Since under section 34 of the Act, the Board of Revenue can interfere with an order of assessment made by any authority within a period of four years from the date of the order, it was held that the Board cannot revise the order of the assessing authority which was beyond the period of four years as prescribed under section 34 of the Act, in view of the fact that the theory of merger of the order of assessment with the appellate order is not applicable to this case. Therefore, this Court held that revision of the assessment order beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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