M.S Menon, J.:— The Deputy Commercial Tax Officer, Kozhikode II, assessed the petitioner to sales tax on a net turnover of Rs. 12,56,178-14-0 for 1952–1953 by his order dated 27-3-1954 (Ext. A). The assessee appealed to the Commercial Tax Officer, Malabar (South). The appeal was dismissed by an order dated 24-5-1954 (Ext. B).
2. By an order dated 31-3-1956 the Deputy Commissioner of Commercial Taxes, Coimbatore Division, ordered as follows:
“In exercise of the powers vested in me under the M.G.S.T Act and rules, I revise the order of the C.T.O Malabar (South) dated 24-5-1954 and redetermine the net turnover at Rs. 14,99,561-4-0 as detailed below and order the levy of tax thereon for 1952–1953”.
1.
Turnover fixed by the D.C.T.O and confirmed by the C.T.O Malabar South
Rs.
12,56,178-14-0
2.
Sugar imports in other names (Sales turnover estimated)
..
1,67,952-7-9
3.
Maida and sugar imported (Sales turnover estimated)
..
46,610-0-0
4.
Purchase through N.C Shenoy, Kozhikode (Rs. 2364-9-7) (Sales turnover estimated)
..
2,500-0-0
5.
Value of gunnies not previously included and assessed
26,319-14-7
Net turnover determined
Rs.
14,99,561-4-4”
(Ext. C)
3. The assessee challenged the correctness of this order before the Kerala Sales Tax Appellate Tribunal, Trivandrum, but without success. The order of the Sales Tax Appellate Tribunal is dated 23-3-1957 (Ext. D). It is the correctness of the said order that is challenged before us by this petition under section 12B of the Madras General Sales Tax Act, 1939. Section 12(2) of the Madras General Sales Tax Act, 1939, provides that the Deputy Commissioner may, suo moto, or on application in the cases specified:
“call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit”.
4. Rule 14(2) of the Madras General Sales Tax Rules, 1939, provided for a revisional jurisdiction in similar terms and in dealing with that provision Krishnaswami Nayudu, J., said:
“The Commercial Tax Officer has only revisional jurisdiction as it is commonly under-stood of examining the record of any order and deciding as to its legality or propriety. It is not open to him to go beyond the order or the record and act upon further information or evidence placed before him so as to disturb the order originally passed and hold that it was not proper.” ((1952) III S.T.C 19, Headnote, paragraph 2)
5. There was an appeal from the said decision and in dealing with certain questions of law referred to a Full Bench, Rajamannar, C.J, said in (1955) VI S.T.C 318 (330):
“Now what exactly is the meaning to be attached to the expression ‘the record of any order passed’. The records which the revising authority calls for are the records of the assessment. They would include the assessment order as well as the other files of the assessing authority which would furnish the basis upon which the assessment order is passed. If in the assessment order the turnover which a dealer has returned or which has been gathered from his books is treated as not taxable or subject to any exemption and the revising authority is of the opinion that the order in this behalf is erroneous, the Commercial Tax Officer ‘would have satisfied himself that such an order was not legal or proper’”.
6. It is common ground that fresh evidence forms the foundation of Ext. C and it was not contended—quite correctly—that if (1955) VI S.T.C 318 lays down the proper ambit of the revisional jurisdiction—as we respectfully think it does-section 12(2) of the Act will justify the action taken by the Deputy Commissioner of Commercial Taxes.
7. What we are concerned with in this case is not an “escaped assessment” but “an escaped turnover” and the further contention of the Department in support of Ext. C, was based on Rule 17 of the Madras General Sales Tax Rules, 1939. Sub-rule (1) of that Rule provides:
“If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the license fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, subject to the provisions in sub-rule (1-A) may, at any time within three years next succeeding that to which the tax or license fee relates, determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable in such turnover or levy the license fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary”;
8. sub-rule (1-A):
“Where in respect of the turnover referred to in sub-rule (i) an order has already been passed under section 11 or 12, the assessing authority shall make a report to the appropriate appellate or revising authority, as the case may be, which shall thereupon after giving the dealer concerned reasonable opportunity of being heard, pass such order as it deems fit”; and
9. Sub-rule (3-A):
“The powers conferred by sub-rules (1) and (3) on the assessing authority or licensing authority may also be exercised by the appellate authority referred to in section 11; or as the case may be, by the revising authority referred to in section 12, at any time within a period of three years next succeeding that to which the tax, or as the case may be, the license fee relates, provided that such authority shall give the dealer concerned a reasonable opportunity of being heard before passing orders under this sub-rule”.
10. In this case action was taken by the Deputy Commissioner of Commercial Taxes. It is clear from the sub-rules extracted above that he would have had the power to do so only if his revisional jurisdiction under section 12 of the Act had been sought or exercised. There was only an appeal under section 11, there were no proceedings under section 12, and in these circumstances we must hold that Ext. C was clearly without jurisdiction and Ext. D, the order of the Appellate Tribunal affirming the same, was incorrect and has to be reversed. Judgment accordingly.
11. As we have taken the view that the petitioner is entitled to succeed even on the assumption that Rule 17 is intra vires of the provisions of the Act we have not dealt with in this judgment his further contention that the said Rule is ultra vires and should be struck down on that ground. According to the Government Pleader even if the Deputy Commissioner of Commercial Taxes can function under sub-rule (1-A) only in cases where there had been proceedings under section 12, the position is different under sub-rule (3-A), and under that sub-rule he can take action whether there had been proceedings under section 12 or not. We see no force in this submission. The words “or as the case may be” between the words “by the appellate authority referred to in section 11” and “by the revising authority referred to in section 12” in sub-rule (3-A) make the position identical.
12. The Department will pay the costs of the assessee, advocate's fee Rs. 100/: