The State Of Kerala v. K.M Cheria Abdulla And Company And Others.

The Judgment of the Court was delivered by

M.S Menon, J.:— The respondents in these three cases were assessed to sales tax by the Deputy Commercial Tax Officer, Cannanore (Rural), in respect of the year 1950-51. The assessments were revised suo motu by the Deputy Commissioner of Commercial Taxes, Coimbatore Division.

2. That the orders in revision were based on fresh evidence is not disputed. The question for consideration is whether the Deputy Commissioner of Commercial Taxes had the right to pass revisional orders on the basis of such evidence. The Sales Tax Appellate Tribunal, Madras, decided that he had no such power by a common order dated 10th October, 1956. It said:

“On the preliminary point urged by the learned counsel for the appellants, we hold that in the cases before us, the revisional authority acted in excess of his jurisdiction under section 12(2)(i) of the Act in having directed the gathering of additional evidence by an authority subordinate to him and in proceeding to effect a revision on the basis of evidence so gathered. Therefore his order is liable to be set aside.”

3. The Deputy Commissioner has preferred these petitions under section 12-B(1) of the Madras General Sales Tax Act, 1939. He challenges the correctness of the conclusion reached by the Appellate Tribunal.

4. Section 12(2) of the Madras General Sales Tax Act, 1939, deals with the powers of revision conferred on the Deputy Commissioner. Sub section (2) reads as follows:—

“The Deputy Commissioner may—

(i) suo motu, or

(ii) in respect of any order passed or proceedings recorded by the Commercial Tax Officer under sub-section (1) or any other provision of this Act and against which no appeal has been preferred to the Appellate Tribunal under section 12-A, on application,

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 proceedings, and may pass such order with respect thereto as he thinks fit.”

5. There can be no doubt that the orders of the Deputy Commis sioner under this provision have to be based on “the record of any order passed or proceeding recorded” under the provisions of the Act by an officer subordinate to him and not on the basis of any fresh evidence recorded subsequently. 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 understood 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”: Louis Dreyfus and Company Ltd. v. The Province of Madras [1952] 3 S.T.C 19, Headnote, paragraph 2..

6. There was an appeal from the decision above-mentioned. In dealing with certain questions of law referred to a Full Bench Rajamannar, C.J, said:

“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’ “: State of Madras v. Louis Dreyfus and Company Ltd.

7. In Appukutty v. The State of Kerala [1958] 9 S.T.C 710., a Full Bench of this Court had occasion to deal with the ambit of section 12(2) of the Madras General Sales Tax Act, 1939. It quoted the passages extracted above, and said:

“It is common ground that fresh evidence forms the foundation of exhibit C and it was not contended—quite correctly—that if State of Madras v. Louis Dreyfus and Company Ltd. 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.”

8. We see no reason to depart from the view adopted in Appukutty v. The State of Kerala.

9. The learned Government Pleader drew our attention to rule 14-A of the Madras General Sales Tax Rules, 1939:

“Where the tax as determined by the initial assessing authority appears to the appellate authority under section 11 or revising authority under section 12 to be less than the correct amount of the tax payable by the dealer, the appellate or revising authority shall before passing orders, determine the correct amount of tax payable by the dealer after issuing a notice to the dealer and after making such enquiry as such appellate or revising authority considers necessary.”

10. It is not disputed that this rule will justify the action taken. The contention of the respondents is that the rule should be considered as ultra vires, and that it would not be allowed to form the foundation of a valid revision under the Act.

11. Section 19 of the Act deals with the power to make rules. According to the learned Government Pleader sub-sections (1) and (5) and certain portions of sub-section (2) of that section will sustain a rule like rule 14-A. The portions of the section to which our attention has been drawn read as follows:—

“19(1) The State Government may make rules to carry out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for—

(j) the duties and powers of officers appointed for the purposes of enforcing the provisions of this Act;

(k) generally regulating the procedure to be followed and the forms to be adopted in proceedings under this Act; and

(1) any other matter for which there is no provision or no sufficient provision in this Act and for which provision is, in the opinion of the State Government, necessary for giving effect to the purposes of this Act.

(5) All rules made under this section shall be published in the Fort St. George Gazette, and upon such publication shall have effect as if enacted in this Act.”

12. The expression “as if enacted in this Act” is discussed at length in Allen's Law and Orders (2nd Edition) at pages 295-300 and 456-459. As stated by him:

“No form of delegation has caused more difficulty, not to say confusion, than the provision that Instruments made under the enabling section ‘shall have effect as if enacted in this Act.’”

13. The principal decision on the subject is that of Lord Herschell, L.C, in Lockwood's case. In that case Lord Herschell held that the effect of “as if enacted in this Act” was to make subordinate legislation as completely exempt from judicial review as the Statute itself.

14. The matter came to a capital test in Yaffe's case. Allen summarises the effect of that case as follows:—

“Whereas previously there were dicta of the House of Lords in favour of the absoluteness of the clause, there are now countervailing dicta in favour of its limitation. It is still impossible, therefore, to state the law in this matter positively; but at least it can be said that the main current of judicial opinion in the superior courts in Yaffe's case is against Lord Herschell's theory, for reasons which are perhaps best stated by Viscount Dunedin.

The confirmation makes the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act. If therefore the scheme, as made, conflicts with the Act, it will have to give way to the Act. The mere confirmation will not save it. It would be otherwise if the scheme had been per se embodied in a subsequent Act, for then the maxim to be applied would have been ‘posteriora derogant prioribus.’ But as it is, if one can find that the scheme is inconsistent with the provisions of the Act which authorises the scheme, the scheme will be bad, and that only can be gone into by way of proceedings in certiorari.”

15. According to Allen “the restless spirit of the formula that statutory Regulations ‘shall have effect as if enacted in this Act’—a ghost which many hoped had been laid in Yaffe's case walked again in Miller v. Boothman.”

16. His conclusion is:

“The whole story, up to the present time, affords an engaging picture of statutory interpretation and conflict of precedent and charms of legislation by reference. And still, when all has been said, the precise effect of the ‘as if enacted’ clause remains undetermined.”

17. The rule-making power under section 19 can be invoked only for carrying out the purposes of the Act, and it is not contended—we think correctly—that section 19 will enable rule 14-A to be upheld even if it is in conflict with the provisions of section 12(2) of the Act. What section 12(2) specifically provides is that the revisional jurisdiction can be exercised only on the basis of the record of any order passed or proceeding recorded under the provisions of the Act. This must imply by necessary intendment a prohibition to the collection of fresh evidence and revisional orders on the basis of such evidence.

18. The learned Government Pleader emphasised the words “may pass such order with respect thereto as he thinks fit”. These words do spell a very wide discretion. But the orders passed in the exercise of that wide discretion will still have to be based on the records mentioned in the sub-section, and nothing else. The validity of rule 14-A did not arise for consideration in the decisions mentioned in this judgment or in State of Madras v. Madura Knitting Co., Ltd. [1959] 10 S.T.C 155., to which also our attention has been drawn. The main question determined in State of Madras v. Madura Knitting Co., Ltd. was the meaning of the word “propriety” occurring in section 12(2) of the Act. It was contended in that case that the word is used in the sense of misconduct like bribery or inducement by immorality. Panchapakesa Ayyar, J., said:—

“It will be meaningless, in our opinion, to have a hierarchy of officers inspecting the subordinate offices and examining the records and orders passed by the subordinate officers in money matters involving public revenue if these superior officers are not allowed to examine the correctness of those orders, which correctness will certainly, in our opinion, be one of the factors for determining the propriety of passing the orders, as held by the Supreme Court in Raman and Raman Ltd. v. Government of Madras [1956] S.C.J 368., where the word ‘propriety’ has in an analogous enactment using the same expression, being defined as fitness; appropriateness, aptitude, suitability, appropriateness to the circumstances or conditions; conformity with requirements, rules or principle; Tightness, correctness, justness, accuracy”; and

“It is certainly not necessary to prove that the Deputy Commercial Tax Officer was lured by gold or woman to prove the impropriety of the order. That is only the popular meaning attached to the word impropriety. The legal meaning of the word, as laid down authoritatively by the Supreme Court, has a far wider connotation. Lure of gold or woman, if proved to be the cause of the order, will not only entail the cancellation of the order but also the dismissal of the Deputy Commercial Tax Officer who passed it.”

19. In the view we have taken, namely, that section 12(2) confines the revising authority to the record, and that rule 14-A in so far as it permits a wider ambit is ultra vires of the provisions of section 12(2), these petitions have to be dismissed, and we decide accordingly. The respondents will have their costs from the petitioner. Advocate's fee Rs. 100 in each of the three cases.

20. The validity of rule 14-A in respect of appeals under section 11 does not arise for consideration in this case, and no arguments were advanced on that matter. Nothing we have herein stated should be considered as an expression of opinion as to the validity of rule 14-A in respect of the appellate power conferred by section 11 of the Act.

21. Petitions dismissed.