Mishra, J.:— A suo motu revision order of the Appellate Assistant Commissioner by the Board of Revenue (Commercial Taxes) has been impugned in this appeal.
2. The assessee/appellant reported a total turnover of Rs. 79,06,129.65 and a taxable turnover of Rs. 25,008.02 for the year 1974-75 under the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as “the Act”. The assessing officer, however, found certain defects in the accounts arid fixed the taxable turnover at Rs. 7,24,250. The assessee/appellant preferred an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner cancelled the assessment in respect of first sale of cotton yarn and remanded the matter to the assessing officer, for a rehearing. The Board however decided to issue notice calling upon the assessee but, cancelled the order of the Appellate Assistant Commissioner after notice which means the assessee/appellant appeared before the Board. When the case was posted for hearing on April 24, 1980, the authorised representative of the assessee requested for adjournment. The case was adjourned and again posted for hearing on September 3, 1980. Again, a prayer for adjournment was made on behalf of the assessee. The Board, however, declined to adjourn the case and passed the impugned order in these words:
“The assessee had purchased yarn from outside the State and had not maintained a separate account. He purchased cone yam and manufactured yam. But, the assessee did not maintain a manufacturing account. Therefore, the assessing officer had to necessarily estimate the turnover. The method of estimation followed by the assessing officer cannot be said to be not justified. The assessee had not kept an account showing the names of the mills to prove that the purchases were made from non-resident sellers and that the yarn had been utilised in the production of powerloom cloth. When they have purchased yam from outside the State they should have maintained a separate stock account for such purchases. In the absence of such account the assessing officer had no other alternative but to make an estimation.
3. In the above circumstances, the order of the Appellate Assistant Commissioner, Pollachi dated April 11, 1977, is set aside and the assessment order is restored.”
4. Before we deal with the main contention whether the Board could exercise suo motu revision power to interfere with an order of remand by the Appellate Assistant Commissioner or not, we propose to test the question whether the reason assigned by the Board to interfere with the appellate order is justifiable or not. The Board has said that the assessee was obliged to maintain a separate account to prove that the purchases were made from non-resident sellers and that the yam had been utilised in the production of powerloom cloth. Our attention however has been drawn to rule 26 of the Tamil Nadu General Sales Tax Rules, 1959, which reads:
“26(1) Every person registered under the Act, every dealer liable to get himself registered under the Act and every other dealer who is so required by an assessing authority by notice served in the prescribed manner shall keep and maintain an up-to-date, true and correct account in ink in any of the languages, specified in the Eighth Schedule to the Constitution or in English showing the goods produced, manufactured, bought or sold or delivered or supplied or otherwise dealt with in any of the ways referred to in clause (n) of section 2 and the turnover thereof separately together with the voucher and in case where such person or dealer keeps and maintains his accounts in a language other than English, he shall adopt international numerals in the maintenance of such accounts.
(14) Every producer or manufacturer other than a manufacturer of jewellery shall maintain, in addition to the other accounts maintained in the usual course of his business and in accordance with the other sub-rules, an account in form XXX showing the production-cum-stock particulars of the raw materials used and the finished products manufactured by him:
Provided that a producer or manufacturer may maintain a production-cum-stock account in any other form so long as it contains all the substantial information that is required in form XXX prescribed in this sub-rule.”
5. Form XXX has got a column to state the receipts of the raw materials, opening stock, by purchases during the period of assessment, the resultant production, resale/manufacture, wastage/shortage, closing stock, date, quantity, number of the raw materials used in production as well as the finished products. Neither the rule afore-quoted nor the form require a separate manufacturing account or a separate account showing purchases from outside the State. The rule afore-quoted also shows that the requirement of maintaining accounts in the pro forma is not mandatory. It is enough that a producer or manufacturer maintains a production-cum-stock account. It need not be in the pro forma. It can be in any other form so long as it contains all the substantial information that is required in the form. If this was done, was it an error of a kind which would have been used against the assessee to undo the order of the Appellate Assistant Commissioner in respect of the first sale of cotton yarn? We think it was not of such a kind.
6. Coming to the main contention, we cannot but take notice of the scheme of the Act under which the assessment order has been made, subjected to two appeals, one before the Appellate Assistant Commissioner under section 31 of the Act in the case of an order passed by the appropriate authority under section 4-A, section 12, section 12-A, section 14, section 15, sub-sections (1) and (2) of section 16, section 18, sub-section (2) of section 22, section 23 or section 27, other than an order passed by an Assistant Commissioner (Assessment) and before the Deputy Commissioner in the case of an order passed by the Assistant Commissioner (Assessment) as in section 31-A and before the Appellate Tribunal under section 36 of the Act. Besides the appeals, certain special power has been given to the Deputy Commissioner akin to the power of revision under section 32 of the Act and a provision has been made for revision by the Deputy Commissioner in certain cases in section 33 of the Act. Similarly, some special powers are vested in the Joint Commissioner of Commercial Taxes by section 34 of the Act and he has been given the power of revision in certain cases. The power under section 34 of the Act which has been exercised by the Board in the instant case (which has now been made the power of Joint Commissioner of Commercial Taxes by Act 22 of 1982) was spelt out in the following words:
“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, section 14, section 15, or sub-section (1) or (2) of section 16 or an order passed by the Appellate Assistant Commissioner under sub-section (3) of section 31 or by the Deputy Commissioner under sub-section (3) of section 31-A or sub-section (1) of section 32 and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act may pass such order thereon as it thinks fit,
(2) The Board of Revenue shall not pass any order under sub-section (1), if—
(a) the time for appeal against that order has not expired; or
(b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or
(c) more than five years have expired after the passing of the order,
………………………….”
7. This indicates that the power was conferred on the Board of Revenue (now it is conferred upon the Joint Commissioner of Commercial Taxes) to call for and examine on its own motion an order passed by one of the authorities referred to therein and after making such enquiries or causing such enquiries to be made to pass such order thereon as it thought fit. But this power was/is not intended to be exercised in a routine or casual manner but only on special occasions. Otherwise, there would/shall always be a chance of the suo motu power of revision being used to defeat the course of proceedings in appeal and in revision. If guidance is taken from the conditions enumerated in sub-section (2) it is clear that the suo motu power had/has to be exercised only when the matter is not taken to appeal or the time for appeal had/has expired. This too is not enough as the Board/Joint Commissioner must also ensure that any issue of this kind has not been taken to the Special Appellate Tribunal or if such an issue had been taken to a Special Tribunal or in any other proceedings, no appeal is taken to the Supreme Court. A Bench of this Court in Avon Plastics v. The State Of Tamil Nadu [1982] 49 STC 268 has said:
“Unless it is found in any particular case that this discreation was wrongly exercised, it would not be proper for the Board to interfere with the order of the Appellate Assistant Commissioner. Such interference is likely to simplify the appellate power.”
8. That indicates that the suo motu revisional power should be used sparingly and only when it is found that without such interference interest of Revenue will suffer. That no interest of Revenue was likely to suffer is clear by the fact that in case of any order against the Revenue by the assessing authority, the Revenue is safeguarded by suo motu revisions provided under sections 32 and 34. We are satisfied that in the instant case the Board has acted illegally and wrongly exercised its jurisdiction. The order of the Board for the said reason is fit to be set aside.
9. In the result, the appeal is allowed. The order of the Board dated November 29, 1980, in Ref. Q4.F2/909/78 is set aside. The order of the Appellate Assistant Commissioner is restored. The case now will be deemed to be remitted to the assessing authority.
10. Appeal allowed.