JUDGMENT
Venkataswami, J.
1. This revision is directed against the order of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Coimbatore, in C.T.A. No. 415 of 1979 dated March 31, 1980.
2. An interesting question of law arises out of this tax case. The question is, when the Deputy Commissioner (Commercial Taxes), refused to exercise his suo motu power on application by the assessee under section 32 of the Tamil Nadu General Sales Tax Act, 1959, no appeal lies to the Sales Tax Appellate Tribunal against such an order.
3. According to the learned Additional Government Pleader (Taxes), unless a positive order is made by the Deputy Commissioner under section 32(1), no appeal lies against an order under section 32(1) merely declining to exercise such a power, on application by the assessee.
4. To appreciate the above contention, it is necessary to set out not only section 32(1) of the Act, but also section 36(1) of the Act. They read as follows :
“Section 32. Special powers of the Deputy Commissioner. – (1) The Deputy Commissioner may, of his own motion, call for and examine an order passed or proceeding recorded by the appropriate authority under section 4-A, section 12, section 12-A, section 14, section 15, or sub-sections (1) and (2) of section 16 and if such order or proceeding recorded is prejudicial to the interest of revenue, may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order thereon as he thinks fit.”
“Section 36. Appeal to the Appellate Tribunal. – (1) Any person objecting to an order passed by the Appellate Assistant Commissioner under sub-section (3) of section 31, or an order passed by the Deputy Commissioner under sub-section (3) of section 31-A, or sub-section (1) of section 32 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Tribunal :
Provided that the Appellate Tribunal may, within a further period of thirty days, admit an appeal presented after the expiration of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period.”
5. Section 36(1) of the Act, as seen above, enables the Tribunal to entertain an appeal against an order passed by the Deputy Commissioner under section 32(1) of the Act subject to the period of limitation. The question is, whether the order declining to exercise the suo motu power can be considered as an order under section 32(1) of the Act. This question, though not directly on the point, under identical circumstances, had been considered by this Court in State of Tamil Nadu v. Crompton Engineering Company (Madras) Limited reported in [1977] 39 STC 260. Ismail, J. (as he then was), speaking for the Bench, while construing sub-section (4) of section 55 of the Act, has held that “the provisions relating to appeal and revision shall apply only when an order of rectification is made, and not when the authority concerned refuses to pass an order of rectification”. Similarly, the same learned Judge, in the case in Dunlop India Ltd. v. Joint Commercial Tax Officer, Mount Road, II Division, Madras reported in [1978] 41 STC 41, while construing the scope of section 34 of the Act, observed that “only when the Board of Revenue passes a positive order in exercise of its suo motu powers of revision under that section interfering with the order of the authorities enumerated therein, it would be passing an order under section 34(1) against which an appeal would lie to the High Court under section 37”. The learned Judge further held that “when the Board merely intimates to the party that it does not intend to exercise its suo motu powers of revision, such an intimation itself will not constitute an order under section 34(1) and no appeal would lie to the High Court against such intimation”. From the above two decisions, we can safely hold that against an order declining to exercise the suo motu power, no statutory appeal or revision will lie. Applying the above ratio, we hold that against the order of the Deputy Commissioner, refusing to exercise his suo motu powers, of course, on application by the assessee, no further appeal lies to the Sales Tax Appellate Tribunal, and the Tribunal went wrong in entertaining the appeal and deciding the matter. Accordingly, we set aside the order of the Tribunal and allow the tax case. No costs.
6. Petition allowed.