Sales Tax Officer, Special Circle 2, Kozhikode, And Another v. C.C Transport Co.

V.P Gopalan Nambiyar, C.J:— We think this appeal should succeed, as It is directly covered in by more than one decision of the Supreme Court and by a Division Bench ruling of this Court. The writ petitioner whose writ petition was allowed by a learned Judge, was assessed to sales tax by exhibit PI order dated 22nd March, 1967. Exemption was granted in respect of a sum of a little over Rs. 80,000, representing accommodation sales. The Deputy Commissioner of Sales Tax exercised his suo motu power of revision under section 35 of the Kerala General Sales Tax Act, which enables him to call for any order passed by any officer or authority below that of an Inspecting Assistant Commissioner and pass such orders thereon as he thinks fit. This revisional power is under sub-section (2) of section 35, subject to three limitations one of which is that it shall not be exercised if more than four years have expired after passing of the order sought to be revised. In pursuance of his decision to exercise the revisional power, the Deputy Commissioner issued exhibit P2 notice dated 28th February, 1971, to the assessee. Objections to the said notice were filed, vide exhibits P3 and P4 dated 15th March, 1971. By exhibit P5 order dated 20th March, 1971, the Deputy Commissioner set aside the assessment order, exhibit P1, and remanded the matter to the Sales Tax Officer to re do the assessment afresh in accordance with law and in the light of the observations contained in the order. The officer issued exhibit P6 notice for fresh assessment and after hearing the assessee on its objection (exhibit P7) passed the impugned order exhibit P8 dated 9th June, 1971. The assessee-respondent filed the writ petition in this court to challenge the said order which was allowed by the learned Judge; against which the State has preferred the appeal.

2. The learned Judge noticed the objection that was raised to the assessment, viz., that in substance and in law, the order was one of reassessment of an escaped turnover under section 19 of the Act and, therefore, without jurisdiction, as it was passed beyond the period fixed by the said section, viz., four years from the expiry of the year to which the tax relates.

3. It was also submitted that the fact that the order was passed pursuant to a direction of the Deputy Commissioner, would not make any difference on the legality of the order, as the Deputy Commissioner himself had no jurisdiction to interfere under section 35, since the case was one of escapement of turnover, falling strictly under section 19 of the Act. The above contention which is seen stated in paragraph 2 of the judgment of the learned Judge was dealt with and examined in detail and, at the end of the discussion, the learned Judge concluded in paragraph 6 that the objection taken to the jurisdiction of the Deputy Commissioner under section 35 of the Act cannot be sustained. Having held so, the learned Judge proceeded to observe as follows:

“7. It has not been seriously contended before me that, if the case falls within the ambit of section 35 of the Act, the Deputy Commissioner has no power to remand the case for a further enquiry and disposal according to law in the light of the directions given by him. Then the question arises whether the Sales Tax Officer, to whom the case was remanded, can pass an order pursuant to the directions of the Deputy Commissioner, after the expiry of the period of four years fixed in section 35 for exercising his revisional power. I have no doubt that the Sales Tax Officer cannot pass an order of reassessment after the aforesaid period. If the Deputy Commissioner cannot himself pass an order bringing the escaped turnover to assessment after the above period it would be absurd to hold that he can direct a subordinate authority to pass such an order, and that the subordinate authority could do so after the expiry of the said period.

8. In the result, I hold that the impugned order, exhibit P8, is without jurisdiction since it has been passed beyond the period of limitation fixed under section 35 of the Act. The said order is, therefore, quashed. There will be no order as to costs.”

4. With respect, we are quite unable to agree with the reasoning and the conclusion of the learned Judge. It has been decided by the Supreme Court in Dhanalakshmi Vilas' case [1969] 24 S.T.C 491 S.C., Nainan's case [1970] 26 S.T.C 251 S.C. and in Thattil Kochuvareed's case [1976] 103 I.T.R 799 S.C that the limitation of time which fetters and acts as a trammel on the exercise of the power of the revisional authority under section 35 of the Act cannot operate against the Sales Tax Officer to whom the matter is remitted back by the revisional authority after setting aside the assessment, and who, thereafter, proceeds as it were, on a clean slate. The proposition as such is uncontestable, and was not, very fairly, contested by the counsel for the respondent. It was recently reaffirmed by this court in C.C Transport Co. v. State of Kerala (T.R.C Nos. 26, 27 and 28 of 1975).

5. Counsel for the respondent, however, contended that, in the instant case, the sales tax assessment had not been set aside in toto, but the remittal back was only for the limited purpose of re-doing the question of exemption and no more. We are unable to agree. On the terms of exhibit P5 order, we have no hesitation to hold that the assessment order had been set aside and the assessing authority had to begin afresh on a clean slate.

6. It was then contended by the counsel for the assessee-respondent that the inhibition of four years' time-limit within which the revisional authority had to act was binding on that authority, and ex hypothesi the same limitation must apply to the authority to whom the matter stood remitted or remanded. It was argued that this latter authority was only a delegate or agent of the revisional authority, and that what binds the principal must necessarily bind the agent also. While the proposition is acceptable, the underlying premise is not. We cannot regard the assessing authority as an agent of the revisional authority, although as its subordinate, it is bound to carry out its directions. In any event, we have the direct authority of the decisions of the Supreme Court noticed earlier, and of the Division Bench of this Court in the tax revision cases. We are, therefore, unable to accept the contention of the assessee-respondent.

7. The learned Government Pleader also raised the contention that against exhibit P8, the assessee has its alternative remedy by way of appeal and further appeal under sections 36 and 39 of the Act and, therefore, the petition under article 226 was not maintainable, having regard to sub-clause (3) of article 226 of the Constitution as amended by the 42nd Amendment, and of section 58 of the 42nd Amendment Act. As we have expressed ourselves against the respondent on the merits, we think it unnecessary to base our decision on this ground, which also appears well-founded.

8. We allow this appeal, set aside the order of the learned Judge and direct that O.P No. 2871 of 1975 will stand dismissed. There will be no order as to costs.

9. Appeal allowed.