JUDGMENT
Sriramulu, J.
1. The short question that arises in this tax revision case, filed by the State, is whether the revisional order made by the Deputy Commissioner of Commercial Taxes is time-barred ?
2. The material facts may briefly be stated: The assessee-firm is a dealer in rice. During the course of inter-State trade, the dealer sold rice from the State of Andhra Pradesh. The turnover of those sales, during the assessment year 1963-64, amounted to Rs. 6,29,707.85. The Special Commercial Tax Officer (Evasions), under Section 9 of the Central Sales Tax Act (hereinafter referred to as the “C. S. T. Act”), made the assessment against the dealer for the assessment year 1963-64, on 15th March, 1965, on a turnover of Rs. 6,36,092.85 including the value of gunny bags of Rs. 6,385 and calculated the tax thereon at 2 per cent.
3. Aggrieved by the assessment so made, the assessee-dealer filed an appeal before the Assistant Commissioner of Commercial Taxes. Two contentions were raised by the dealer before the Assistant Commissioner. The first contention raised by the dealer was that the rice, that was sold by it, was obtained from paddy which met tax at the rate of 3 paise per rupee under the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the “A. P. G. S. T. Act”) and hence the turnover of sales of rice under item 66(b) of the First Schedule to the A. P. G. S. T. Act, read with Section 8(2A) of the C. S. T. Act, was taxable at the rate of 1 paisa per rupee, and the Commercial Tax Officer erred in taxing it at the rate of 2 paise per rupee. The second contention was that the sum of Rs. 6,385 represented the value of the gunny bags in which the rice was sold, and no separate price was charged for the gunnies and, hence, Rs. 6,385 should not have been included in the taxable turnover.
4. By his order dated 17th September, 1965, the Assistant Commissioner of Commercial Taxes agreed with the legal contention raised by the dealer that if it had effected purchases of paddy and paid tax under the A. P. G. S. T. Act at 3 paise per rupee, converted the paddy into rice and sold the rice in the course of inter-State trade or commerce, such sales of rice should be taxed at the rate of one paisa per rupee. Since, however, the dealer had not raised that contention before the assessing officer and had, for the first time, raised it before him, the Assistant Commissioner of Commercial Taxes set aside the levy of tax on the turnover of Rs. 6,29,707.85 and remitted it back to the assessing officer with a direction to verify the dealer’s contention and, if the facts, as contended by the dealer, were found correct, to tax the above turnpver at the rate of one paisa per rupee. Regarding the second contention, the Assistant Commissioner held that the inclusion of the value of the gunnies of Rs. 6,385 in the taxable turnover and also the levy of tax on such turnover at 2 per cent was justified, in view of the decision of the Kerala High Court in Srinivasa Pai v. Sales Tax Appellate Tribunal [1961] 12 S.T.C. 80. The Assistant Commissioner thus partly allowed the appeal with the above direction.
5. When it went back to him, the assessing officer, after serving notice on the dealer, verified the accounts of the dealer afresh and found, as a fact, that the purchases of paddy suffered tax at 3 paise per rupee under the A. P. G. S. T. Act and that paddy was converted into rice and sold. Such turnover, during the period 1st November, 1963, to 31st March, 1964, worked out to Rs. 6,29,707.85. Since the entire turnover was covered by C forms and the Assistant Commissioner had directed him to tax the entire turnover at 1 percent the assessing officer, by his order dated 12th December, 1967, assessed the turnover of Rs. 6,29,707.85 at one paisa per rupee and the turnover of Rs. 6,385 at 2 paise per rupee.
6. Under the powers vested in him under Section 20(2) of the A. P. G. S. T. Act, the Deputy Commissioner of Commercial Taxes called for the assessment record suo motu and examined it for the purpose of satisfying himself as to the legality and the propriety of the order passed by the Assistant Commissioner of Commercial Taxes dated 17th September, 1965. The correct rate of tax, according to the Deputy Commissioner of Commercial Taxes, on inter-State sales of such rice, and with reference to Section 5 and Section 5-A of the A. P. G. S. T. Act and Section 8(2A) of the C. S. T. Act, was 1|- per cent. The Deputy Commissioner, therefore, held that the Assistant Commissioner had erred in directing the Special Commercial Tax Officer to levy tax on the turnover of Rs. 6,29,707.85 at one paisa per rupee. After service of notice on the dealer, the Deputy Commissioner of Commercial Taxes, by his order dated 12th September, 1969, modified the Assistant Commissioner’s order, holding thus :
…As the matter stands, the Assistant Commissioner (C. T.), Kakinada, failed to adopt the correct rate of tax and erred in directing the Special Commercial Tax Officer (Evasions), Kakinada, to levy tax at 1 per cent only on the above turnover…. Thus the impropriety and illegality that set into his order has to be set right.
…I, therefore, pass order confirming the assessment of a turnover of Rs. 6,29,707.85 to tax at the extra 1/4 per cent under the C. S. T. Act for the year 1964-65 duly modifying the appellate order. The Commercial Tax Officer, Ramachandrapuram, shall give effect to this order….
7. It may be noted here that the mention of the assessment year as “1964-65” in the order of the Deputy Commissioner of Commercial Taxes is a mistake and the correct assessment year is “1963-64”.
8. The dealer then preferred an appeal to the Sales Tax Appellate Tribunal against the order of the Deputy Commissioner of Commercial Taxes dated 12th September, 1969, modifying the order of the Assistant Commissioner of Commercial Taxes dated 17th September, 1965. The dealer raised two contentions before the Sales Tax Appellate Tribunal. The first was that the additional tax at \ per cent under Section 5-A of the A. P. G. S. T. Act was not leviable under the C. S. T. Act, and the second contention was that the date of service of revision notice, i. e., 2nd September, 1969, and the date of the revisional order passed by the Deputy Commissioner, i. e., 12th September, 1969, were both beyond four years from the date of service of the final order of assessment, i. e., 29th March, 1965, and that the Deputy Commissioner’s revisional order was time-barred and bad in law. The Sales Tax Appellate Tribunal rejected the first contention and accepted the second contention raised by the dealer and, accordingly, allowed the appeal and set aside the revisional order dated 12th September, 1969, passed by the Deputy Commissioner of Commercial Taxes. Hence in this tax revision case the State has challenged the correctness and the legality of the order of the Sales Tax Appellate Tribunal.
9. The learned counsel, Sri Mahadev, appearing for the State, contended that the revisional order of the Deputy Commissioner of Commercial Taxes dated 12th September, 1969, was within four years from the order of the Assistant Commissioner dated 17th September, 1965, and hence, the Sales Tax Appellate Tribunal erred in holding that the Deputy Commissioner’s order was time-barred.
10. The learned counsel, Sri Sundara Rao, for the dealer, on the other hand, submitted that (1) the question of levy of additional tax at 1/4 per cent under Section 5-A of the A. P. G. S. T. Act was neither considered by the assessing officer at the time of making the original assessment on 15th March, 1965, nor was it raised before or decided by the Assistant Commissioner in the appeal against the assessment and hence, there was no illegality or impropriety in the order of the Assistant Commissioner dated 17th September, 1965, which gave jurisdiction to the Deputy Commissioner of Commercial Taxes to revise it under the powers vested in him under Section 20(2) of the A. P. G. S. T. Act. Since the Special Commercial Tax Officer, on remand, failed to levy the additional tax at \ per cent on the turnover under Section 5-A of the A. P. G. S. T. Act, at the time of making the assessment on 12th December, 1967, if at all there was any illegality or impropriety, it was in the fresh assessment dated 12th December, 1967. The Deputy Commissioner should have revised that assessment and, instead, wrongly revised the Assistant Commissioner’s order dated 17th September, 1965; (2) under Section 20(3) of the A. P. G. S. T. Act, the time-limit fixed for revision applied to the revision of an order in relation to an “assessment” and the order that has been revised by the Deputy Commissioner was not an order in relation to “assessment”, but was the order of the Assistant Commissioner passed in an appeal setting aside the levy on a part of the taxable turnover; and (3) an assessment under Section 9 of the C.S.T. Act has to be made subject to the provisions of the C. S. T. Act and the Rules made thereunder.
11. Under Sub-rule (9) of Rule 14-A of the C. S. T. (Andhra Pradesh) Rules, 1957, if for any reason, tax has been assessed at too low a rate in any year, the assessing authority, after issuing notice to the dealer and making such enquiry as it considers necessary, revise the assessment within six years from the expiry of the concerned assessment year, if such event had occurred by reason of the failure of the dealer to disclose the correct turnover or any other particulars correctly, or within four years from the expiry of the concerned assessment year, if such event had occurred due to any other cause not attributable to the dealer, and such powers, under Sub-rule (11) of Rule 14-A of the C. S. T. (Andhra Pradesh) Rules, 1957, are exercisable by the appellate or the revising authorities. Hence the revisional order in this case is time-barred and has rightly been conceded by the counsel for the State before the Sales Tax Appellate Tribunal.
12. In reply, the learned counsel for the State submitted that when an appeal is filed against an assessment, the order of assessment gets merged in the appellate order and the Assistant Commissioner’s order, in this case, is, therefore, an “assessment order”. Rules 9 and 11 of the C. S. T. (Andhra Pradesh) Rules apply to “reassessment” and not to “revisions”. The only provision that is applicable to revision of such orders is Section 20, subsections (1) and (2), of the A. P. G. S. T. Act and, therefore, the time-limit is four years from the date of the order, i. e., 17th September, 1965. If the Assistant Commissioner’s order did not constitute an “assessment”, then from the scheme of the Act it appears that no time-limit has been fixed for revising an order other than an “assessment”. Viewed from any angle, the order of the Deputy Commissioner is not time-barred and the decision of the Sales Tax Appellate Tribunal holding to the contrary is erroneous in law.
13. We have carefully considered the above arguments. We are, in this case, concerned with the assessment under the C. S. T. Act for the assessment year 1963-64 in respect of sales of rice effected by the dealer from the State of Andhra Pradesh, in the course of inter-State trade or commerce. Rice is not one of those goods which have been declared under Section 14 of the C. S. T. Act as goods of special importance in inter-State trade or commerce. A dealer effecting sales in the course of inter-State trade or commerce is liable to pay tax under Section 6 of the C. S. T. Act at the rate specified in Section 8 of the C. S. T. Act; During the relevant assessment year, under Section 8(1) of the C. S. T. Act, all sales effected in the course of inter-State trade were liable to be taxed at 2 per cent. If the sales of rice in the State of Andhra Pradesh are either generally exempt from payment of tax or generally subjected to a lower rate than 2 per cent, then, notwithstanding anything contained in Section 6(1A) or Section 8, Sub-section (1) or Sub-section (2), the sales tax that is leviable under the A. P. G. S. T. Act will be either “nil” or at the lower rate, as the case may be.
14. Under item 66(b) of the First Schedule to the A. P. G. S. T. Act, tax on sales of rice obtained from paddy that has met tax under the A. P. G. S. T. Act is one paisa in a rupee at the point of sale.
15. Under Section 9(1) tax leviable under the C. S. T. Act is levied and collected by the Government of India, in accordance with the provisions of Sub-section (3) in the State from which the movement of the goods commenced. By virtue of Sub-section (3) of Section 9, the authorities under the A. P. G. S. T. Act empowered to assess, collect and enforce payment shall, on behalf of the Government of India, and subject to the Rules made under the C. S. T. Act, assess, collect and enforce payment of tax, including any penalty payable by a dealer under the C. S. T. Act in the same manner as the tax on sale or purchase of goods is assessed, paid and collected under the A. P. G. S. T. Act. For that purpose, the Andhra Pradesh sales tax authorities may exercise all or any of the powers they have under the A. P. G. S. T. Act, and the provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, under the A. P. G. S. T. Act shall apply.
16. Although, by virtue of the charging Section 6 of the C. S. T. Act, the Government of India is entitled to levy and collect the Central sales tax, no provisions relating to the machinery and the process of assessment and the collection of Central sales tax are laid down under the C. S. T. Act. For that purpose, it assimilates and attracts the provisions of the State General Sales Tax Act in force. Thus, for making an assessment or reassessment, or for exercising the power of review, revision, etc., under the C. S. T. Act, in this State, we shall have to turn or look to the provisions of the A. P. G. S. T. Act.
17. Briefly stated, the procedure laid down under the A. P. G. S. T. Act for making an assessment is as follows :
It is obligatory on every dealer to submit a return relating to his turnover in accordance with Section 13. If the return filed is correct and complete, the assessing officer shall assess the amount of tax payable by the dealer on the basis of such return, but within four years from the concerned assessment year. If the return filed by the dealer is incorrect or incomplete, after giving notice to the dealer to prove the correctness or completeness of the return, the assessing officer may make such enquiry as he considers necessary, and make the assessment to the best of his judgment [section 14(1)]. While making a best judgment assessment, the assessing officer may, in addition to the tax, impose penalty on the dealer, either for nondisclosure or for late filing of the return, or for late submission of accounts, etc. [Section 14, Sub-sections (2) and (3)].
18. Where (i) the whole or any part of the turnover of a business has escaped assessment to tax, or (ii) has been under-assessed, or (iii) assessed at a rate lower than the correct rate, and (iv) where the licence fee or the registration fee has escaped the levy, or (v) has been levied at a rate lower than the correct rate, the assessing authority, after issuing a notice to the dealer and after making such enquiry a$ it may consider necessary, determine (1) the turnover that has escaped assessment, (2) assess the correct amount of tax, (3) assess at the correct rate the turnover that has been assessed at a lower rate, and (4) levy the registration fee that has escaped levy, or levy the correct amount of licence or registration fee, and in any of those circumstances, penalty may also be imposed [section 14(4)]. An assessment order under Section 14(4) shall be made within six years or four years from the expiry of the concerned tax year depending upon the fact that such assessment has been occasioned by the dealer’s failure to disclose the turnover or the particulars correctly, or for any reason other than the one attributable to the dealer [section 14(4-A)], but after giving reasonable opportunity to the dealer to explain the reasons of the default. The powers to assess are also exercisable by the higher authorities [section 14(4-C)]. Provisional assessment may also be made under Section 15, and also on a casual trader under Section 15-A. The assessment on a firm, or an A. 0. P. (association of persons) after its dissolution, or on a H. U. F. after its disruption, may be made under Section 15-B as if no such dissolution or disruption had taken place. The tax and penalty have to be paid as laid down in Section 16. They can be recovered in the manner laid down under Sections 17 and 18. Any dealer objecting to an order passed, or proceeding recorded, may appeal, within thirty days on which the order or the proceeding is served on the dealer (section 19). The manner of disposal of the appeal, by the appellate authority, is laid down in Sub-sections (3), (4) and (5) of Section 19. The next important section with which we are concerned is Section 20. The Board of Revenue, under Section 20(1), or the Deputy Commissioner, or the Commercial Tax Officer under Section 20(2) may, suo motu, call for and examine the records of any order passed or proceeding recorded by any authority subordinate to it or him, for the purpose of satisfying itself or himself about the legality or propriety of such order, or the regularity of such proceeding, and pass any order in reference thereto as it or he thinks fit. Such power of revision shall not be exercisable by the respective authorities in respect of a question or an issue which has either been decided by, or is the subject-matter of, an appeal before the Sales Tax Appellate Tribunal [section 20(2-A)]. Revisional powers in relation to an order of assessment are exercisable within such period not exceeding four years from the date on which the order was served on the dealer.
19. Rules 31(1) and (4) of the A. P. G. S. T. Rules deal with reassessment contemplated under Section 14(4) of the A. P. G. S. T. Act. Rule 33-A states as to which officers are subordinate to the Board of Revenue and the Deputy Commissioner, and the Commercial Tax Officer so far as Clauses (1) and (2) of Section 20 are concerned, for the purpose of exercising revisional powers. Under Rule 44(1), revisional powers under Section 20(2) of the Act may be exercised by a Deputy Commissioner or a Commercial Tax Officer and in relation to an assessment by the Commercial Tax Officer within three years from the date on which the order was served on the dealer, and by the Deputy Commissioner “within a period of four years from the date on which the order was served on the dealer, No order of enhancement of an assessment can be made without affording an opportunity to the dealer to show cause against it. The period fixed for revision shall be computed in the manner laid down in Section 20(5) and (6) of the Act.
20. A clerical or arithmetical mistake in any order passed by the assessing, licensing or revising authority may be corrected by such assessing, licensing, appellate or revising authority at any time within four years from the date of the order, provided such mistake is apparent on the face of the record.
21. Thus, in brief, is the procedure for making an assessment under the A. P. G. S. T. Act. Rule 14-A of the C. S. T. (Andhra Pradesh) Rules, 1957, provided the manner in which the returns under the C. S. T. Act are to be filed, and the manner in which the assessment has to be made (which is practically the same as Section 14 and Rule 31 of the A. P. G. S. T. Act, and the Rules made thereunder). Rule 14-A(8) and (9) deal with the manner in which a reassessment is to be made [corresponding to the procedure laid down in Section 14(4) of the A. P. G. S. T. Act, and Rule 31 of the A. P. G. S. T. Rules], and the period for making such assessment. Rule 14-A(10) of the C. S. T. (Andhra Pradesh) Rules corresponds to Rule 50 of the A. P. G. S. T. Rules in regard to the correction of clerical and arithmetical mistakes in the order.
22. On a careful perusal of both the A. P. G. S. T. Act and the C. S. T. Act and the concerned Rules, it is manifest that no rules regarding the exercise of the revisional powers are laid down under the C. S. T. Act. Rule 31 of the A. P. G. S. T. Act and Rule 14-A(8), (9) and (11) relate to reassessment and not to revision. The concerned sections and rules relating to the revision, whether it be under the A. P. G. S. T. Act or under the C. S. T; Act, are sec ion 20 of the A. P. G. S. T. Act and Rule 33-A and Rule 44 of the A. P. G. S. T. Rules.
23. In the light of the aforesaid procedure, we shall now examine the correctness of the contention that has been raised in this tax revision case.
24. The original order of assessment for the assessment year 1963-64 was made on 15th March, 1965. It was served on the dealer on 29th March, 1965. The Assistant Commissioner’s order in first appeal against the assessment was made on 17th September, 1965. The notice for revising the Assistant Commissioner’s order was issued by the Deputy Commissioner of Commercial Taxes on 2nd September, 1969, and the order revising the Assistant Commissioner’s order was made by the Deputy Commissioner on 12th September, 1969. The fresh assessment, after remand, was made on 12th December, 1967.
25. The first question that has to be considered is whether at all the order of the Assistant Commissioner of Commercial Taxes is either illegal or improper, so as to give jurisdiction to the Deputy Commissioner to revise it.
26. Under Rule 33-A of the A. P. G. S. T. Rules, the Assistant Commissioner is subordinate to the Deputy Commissioner, so far as Section 20(2) of the A. P. G. S. T. Act is concerned, for the purposes of exercising revisional powers.
27. The learned counsel Sri W. V. V. Sundara Rao, appearing for the dealer, in view of the decisions of this court in State of Andhra Pradesh v. Oruganti Venkateswarlu & Brothers and Ors. [1967] 20 S.T.C. 340, Radhakrishna and Company v. State of Andhra Pradesh and Anr. [1969] 24 S.T.C. 320, and the decision of this court in Writ Petitions No. 2955 and Batch of 1969 and T. R. C. No. 16 of 1970 dated 23rd November, 1970, conceded that on the turnover of rice in question additional tax at the rate of J per cent is leviable under Section 5-A of the A. P. G. S. T. Act, besides the tax at the rate of 1 per cent under Section 5, read with item 66(b) of the First Schedule to the A. P. G. S. T. Act and Section 8(2A) of the C. S. T. Act.
28. Under Section 20(2) of the A. P. G. S. T. Act, the Deputy Commissioner may, suo motu, call for and examine the record to satisfy himself as to the legality or propriety of the order or the regularity of the proceeding passed by the Assistant Commissioner. Even a decision rendered by the Assistant Commissioner, under Section 19 of the A. P. G. S. T. Act in an appeal against any order, whether an assessment or any other order or proceeding recorded by the assessing officer, if it is prejudicial to the revenue, can be revised by the Deputy Commissioner under Section 20(2) of the A. P. G. S. T. Act. If on examining the record the Deputy Commissioner is of the opinion that the Assistant Commissioner’s order is either illegal or improper, then it is open to him, as the higher authority, to pass such order as he thinks fit in order to bring the final order in conformity with law.
29. While making the original assessment on 15th March, 1965, the Special Commercial Tax Officer did not at all consider the applicability of Section 5-A of the A. P. G. S. T. Act to the facts of this case, although the turnover was more than Rs. 3,00,000. The entire turnover was assessed by him at the rate of 2 paise per rupee under Section 5 of the A. P. G. S. T. Act. In appeal, the dealer contended before the Assistant Commissioner that since the rice that it had sold in the course of inter-State trade or commerce, was obtained from paddy which met tax at the point of purchase at 3 paise per rupee under the A. P. G. S. T. Act, the correct rate of tax that was applicable to the turnover was 1 per cent under item 66(b) of the First Schedule to the A. P. G. S. T. Act. Such a contention, which was based upon facts, was raised for the first time before the Assistant Commissioner. The dealer could not get the benefit of taxation at the lower rate unless it had established that the rice that was sold by it, was obtained from paddy on which it had paid tax under the A. P. G. S. T. Act. The Assistant Commissioner agreed with the legality of the contention raised by the dealer but, for getting the relief, the Assistant Commissioner held that the dealer must establish the above fact which entitled it to get the benefit of taxation at a lower rate. For that purpose, he set aside the order and the levy of tax at the rate of 2 per cent on the turnover of Rs. 6,29,707.85 and directed the assessing officer to tax that part of the turnover of rice at 1 per cent, if the dealer proved that the said rice, which was sold by it, was obtained from paddy which met tax under-the A. P. G. S. T. Act. The whole assessment dated 15th March, 1965, was not set aside by the Assistant Commissioner, but only a part of it relating to the turnover of Rs. 6,29,707.85 and its taxability at 2 per cent.
30. The view of law taken by the Assistant Commissioner that the sale of rice, which was obtained from paddy which met tax under the A. P. G. S. T. Act, was taxable at 1 per cent is correct in law and is unassailable. There is., therefore, no illegality or impropriety in that view or the finding of the Assistant Commissioner. Since the question of levy of additional tax under Section 5-A of the A. P. G. S. T. Act was neither raised before him nor decided by the Assistant Commissioner, one way or the other, we are unable to see how the Assistant Commissioner’s order is illegal or improper, so as to give jurisdiction to the Deputy Commissioner to revise the Assistant Commissioner’s order under Section 20(2) of the A. P. G. S. T. Act. For the purpose of exercise of the powers of revision under Section 20(2) of the A. P. G. S. T. Act, the revising authority should confine itself to the material already on record. Section 20 of the A. P. G. S. T. Act does not enable the officer concerned to travel beyond the record. The legality or the propriety of the order under revision should be justified with reference to the material on record. If the Assistant Commissioner had, either when raised by a party to the appeal before him, or suo motu, considered the question and recorded a finding that the additional tax of J per cent was not leviable in an assessment under the C. S. T. Act, then an illegality or impropriety would have occurred in his order. That is not the case here. The direction given by the Assistant Commissioner to tax the turnover at 1 per cent, if the contention of the dealer was found correct, did not fetter the hands of the Special Commercial Tax Officer from levying the additional tax at I per cent on the said turnover under Section 5-A of the A. P. G. S. T. Act. When once the assessment is set aside and a remand order is made directing a fresh assessment, then, even though the order of the remanding authority confines the jurisdiction of the assessing officer to a specific field of enquiry, still it is open to the assessing officer to proceed beyond the field and traverse the entire range of jurisdiction as if it were an original proceeding. In the original assessment proceedings, the assessing officer could have levied additional tax under Section 5-A of the A. P. G. S. T. Act. If the Assistant Commissioner had decided and laid down in his order that additional tax could not be levied, or directed the Special Commercial Tax Officer not to levy such tax, then, as has already been stated above, there would have been a bar against the Special Commercial Tax Officer levying additional tax. Since there was no such finding or prohibition relating to the levy of additional tax in the Assistant Commissioner’s order, we hold that there was no illegality or impropriety in his order and, hence, the primary condition or sine qua non for the exercise of the revisional powers by the Deputy Commissioner was not satisfied in this case. The order that has been passed by the Deputy Commissioner is without jurisdiction and is, therefore, bad in law. On that ground itself, we uphold the order of the Sales Tax Appellate Tribunal, setting aside the Deputy Commissioner’s order dated 12th September, 1969.
31. We will then consider the argument of the learned counsel appearing for the dealer.
32. According to the learned counsel for the dealer, Section 14(4) of the A. P. G. S. T. Act and Rule 31 of the A. P. G. S. T. Rules relate to “reassessments” only and not to “revisions”, because such a power is ordinarily given to an assessing officer. If, however, the reasons that led to reassessment went undetected by the assessing officer then the law also gives power to the higher authorities to make a reassessment to protect the interest of the revenue. So also, Rule 14-A, Sub-rules (9) and (11), of the C. S. T. Rules. As we have already observed, there is neither a provision under the C. S. T. Act nor in the C. S. T. (Andhra Pradesh) Rules, 1957, relating to revision of an assessment or order or proceeding. All the above provisions relied upon by the learned counsel for the dealer, therefore, in our view, relate to “reassessments” and not to “revisions”. Hence that part of the argument of the learned counsel, Sri W. V. V. Sundara Rao, that the Deputy Commissioner’s order is governed by Sub-rules (9) and (11) of Rule 14-A of the C. S. T. (Andhra Pradesh) Rules is without any substance and is, accordingly, rejected.
33. The next submission of the learned counsel for the dealer was that the order under revision was not an “assessment”. Hence the power under Section 20(2) of the A. P. G. S. T. Act could have been exercised with reference to that order, but subject to Rule 14-A, Sub-rule (9), of the C. S. T. (Andhra Pradesh) Rules, 1957. In reply, the argument of the learned counsel for the State was that the assessment order goes merged into the appellate order and, therefore, the Assistant Commissioner’s order was an “assessment”. In case it was not considered as an assessment but only an order, then there is no revision under the A. P. G. S. T. Act or the Rules made thereunder, laying down any time-limit for revising such an order and hence the order of the Deputy Commissioner was not time-barred. Rule 14-A(9) of the C. S. T. (Andhra Pradesh) Rules did not apply to revisions.
34. For this purpose, we have to consider the language used in Section 20 of the A. P. G. S. T. Act. The relevant portion of Section 20 reads thus :
Section 20. Revision by Board of Revenue and other prescribed authorities.-(1) The Board of Revenue may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including Sub-section (2) of this section, for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit.
(2) Powers of the nature referred to in Sub-section (1) may also be exercised by the Deputy Commissioner and the Commercial Tax Officer, in the case of orders passed or proceedings recorded by authorities, officers or persons subordinate to them.
(2-A) The power under Sub-section (1) or Sub-section (2) shall not be exercised by the authority specified therein in respect of any issue or question, which is the subject-matter of an appeal before, or which was decided on appeal by, the Appellate Tribunal under Section 21.
(3) In relation to an order of assessment passed under this Act, the powers conferred by Sub-sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed….
35. From the language of the section it is manifest that under Section 20(1) any order passed or proceeding recorded by a subordinate officer can be revised by a higher officer. Orders are made under the Act in relation to assessment and also in regard to licence fee or registration and also regarding the refund proceedings. Hence Section 20(1) is comprehensive and gives power to the higher officer to revise the order of a subordinate officer, whether it related to an assessment or not, and even if it related to a licence fee or registration, or to a proceeding relating to refund of tax. But Sub-section (3) of Section 20 fixes the time-limit of four years for revising an order in relation to an assessment passed under the A. P. G. S. T. Act. From the above scheme it appears that the time-limit of four years is fixed for revising an order in relation to an assessment and that no time-limit is fixed for revising an order other than an assessment order or proceeding. Since the order of the Assistant Commissioner that has been revised in the instant case is neither an order relating to any licence or registration fee, nor a proceeding for refund of tax, we have necessarily to hold that the Deputy Commissioner has exercised his powers of revision against an order relating to an assessment made under the A. P. G. S. T. Act. If the Deputy Commissioner had revised the order of the Assistant Commissioner in relation to an assessment, then, under Section 20, Sub-section (3), of the A. P. G. S. T. Act, the order of the Deputy Commissioner should have been passed within a period not exceeding four years from the date on which the order was served on the dealer.
36. According to the learned counsel appearing for the dealer, the order that was made on 15th March, 1965, was served on the dealer on 29th March, 1965, and the Deputy Commissioner’s order, on revision, was made on 12th September, 1969, i. e., long after four years. Even the notice of revision was served on the dealer on 2nd September, 1969, and that was also beyond the period of four years. There is good deal of force in this argument unless the contention advanced on behalf of the State that since the original assessment merged in the appellate order of the Assistant Commissioner dated 17th September, 1965, the Assistant Commissioner’s order is an order of assessment is accepted.
37. We have, therefore, to consider the question of merger of assessment order in an appellate order. In this connection, the learned counsel appearing for the State relied upon the decision of the Bombay High Court in Commissioner of Income-tax, Bombay North v. Tejaji Farasram Kharawala [1953] 23 I.T.R. 412 and the Supreme Court in Commissioner of Income-tax, Bombay v. Amritlal Bhogilal & Company [1958] 34 I.T.R. 130 (S.C.), and our decision dated 29th September, 1972, rendered in T. R. C. No. 3 of 1972 (Kaliki Veera Reddy and Co. v. State of Andhra Pradesh [1974] 34 S.T.C. 517), and the decision dated 11th November, 1970, in Writ Petition No. 4001 of 1968 (G. Narsimhulu & Co. v. State of Andhra Pradesh [1974] 34 S.T.C. 529).
38. If an appeal is provided against an order passed by a Tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority, the original decision merges in the appellate decision. The appellate decision alone would thereafter subsist and would be operative and capable of enforcement.
39. However in State of Madras v. Madurai Mills Company Ltd. [1967] 19 S.T.C. 144 at 149 (S.C.), his Lordship Ramaswami, J., speaking for the Supreme Court, regarding the doctrine of merger, observed thus :
…But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction….
40. In Commissioner of Income-tax, Bombay v. Amritlal Bhogilal & Company [1958] 34 I.T.R. 130 (S.C.), the order of assessment was made by the Income-tax Officer, which was a composite order, viz., an order granting registration to the firm and making an assessment on the basis of registration. An appeal was taken to the Appellate Assistant Commissioner against the composite order of the Income-tax Officer. Overruling the decision of the High Court, the Supreme Court held that the order granting registration did not merge in the order passed by the Appellate Assistant Commissioner in appeal, or in the order of the Commissioner of Income-tax passed in revision, for the reason that the order of the Income-tax Officer granting registration, could not be deemed to have merged in the order of the Appellate Assistant Commissioner in an appeal taken against the composite order of assessment. An order granting registration to a firm, under Section 26-A of the Indian Income-tax Act, 1922, merely affected or governed the procedure in collecting or recovering the tax found due from a firm, and was separate and independent of the order of assessment. His Lordship, Gajendragadkar, J., observed thus :
…however wide the powers of the Appellate Assistant Commissioner may be in an appeal from an order of assessment, they can be exercised only in respect of the matters which are specifically made appealable under Section 30(1), and if any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner, it is not open to him to entertain a plea about the correctness, propriety or validity of such an order….
41. In order to appreciate the ratio decidendi of Madurai Mills Company’s case [1967] 19 S.T.C. 144 (S.C.), it is necessary to know the facts of that case. The assessing officer determined the net turnover at Rs. 15,44,09,109-3-11 for the assessment year 1950-51. In appeal, before the Commercial Tax Officer the dealer contended, firstly, that a sum of Rs. 1,44,294-14-4 was wrongly included in the turnover and, secondly, that another sum of Rs. 81,546-0-1, which represented the sale proceeds realised by selling empty drums, was not realisation in the course of its business. The Commercial Tax Officer upheld the first contention and rejected the second. The dealer then presented a revision petition to the Deputy Commissioner of Commercial Taxes, and the only objection raised before the Deputy Commissioner was that the amount of tax of Rs. 6,57,971-4-9 collected by it, could not be included in the taxable turnover. The Deputy Commissioner dismissed the revision petition holding that such a new contention for the first time in appeal could not be raised. After the issue of notice the Board of Revenue revised the order of the Deputy Commissioner by including in the net turnover a sum of Rs. 7,74,62,706-1-6 as that amount was wrongly excluded by the assessing authority. The dealer objected to the proposed revision on the ground that the proceeding was barred by limitation under Section 12 of the Madras General Sales Tax Act, which corresponds to Section 20 of the A. P. G. S. T. Act. The objection was overruled and the turnover, which was wrongly excluded, was included in the net turnover. On appeal the Madras High Court held that the revisional order of the Board dated 25th August, 1958, was barred by time. On appeal by the State, the Supreme Court observed, at page 150, thus:
…In the circumstances of the present case, it cannot be said that there was a merger of the order of assessment made by the Deputy Commercial Tax Officer dated the 28th November, 1952, with the order of the Deputy Commissioner of Commercial Taxes dated the 21st August, 1954, because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revision before the Deputy Commissioner of Commercial Taxes. The only point that was urged before the Deputy Commissioner was that the sum of Rs. 6,57,971-4-9 collected by the respondent by way of tax should not be included in the taxable turnover. This was the only point raised before the Deputy Commissioner and was rejected by him in the revision proceedings. On the contrary, the question before the Board of Revenue was whether the Deputy Commercial Tax Officer, Madurai, was right in excluding from the net taxable turnover of the respondent the sum of Rs. 7,74,62,706-1-6, which was the value of cotton purchased by the respondent from outside the State of Madras….
42. With those observations, the Supreme Court dismissed the appeal of the State.
43. In the case before us the only question that was agitated by the dealer before the Assistant Commissioner was whether the turnover was taxable at the rate of 2 per cent or at 1 per cent. The question of levy of additional tax of per cent under Section 5-A of the A. P. G. S. T. Act was neither before the assessing officer nor before the Assistant Commissioner in appeal. Before the Deputy Commissioner, who revised the order of the Assistant Commissioner, the question was whether the additional tax of J per cent was leviable on the turnover. The levy of additional tax at per cent under Section 5-A of the A. P. G. S. T. Act was neither the subject-matter of assessment nor an issue in appeal before the Assistant Commissioner. In view of the decision of the Supreme Court in Madurai Mills Company’s case [1967] 19 S.T.G. 144 (S.C.), it therefore appears to us that the doctrine of merger cannot be applied to the facts of this case.
44. The assessment order dated 15th March, 1965, did not, therefore, merge in the order of the Assistant Commissioner and, therefore, the time commenced to run from the date of service of the assessment order dated 15th March, 1965. Since the Deputy Commissioner’s order is beyond four years from 29th March, 1965, on which date the assessment order dated 15th March, 1965, was served on the dealer, obviously the revisional order dated 12th September, 1969, is beyond the period of four years’ time-limit fixed for revision under Section 20(3) of the A. P. G. S. T. Act. The revisional order was, therefore, rightly held by the Sales Tax Appellate Tribunal to be barred by time.
45. There is no doubt that the order passed by the Deputy Commissioner was in relation to an assessment. The word “assessment”, in its ordinary acceptation, means the official determination of the tax. The word “assessment” is used in the Sales Tax Act to mean, sometimes the computation of the turnover, sometimes the determination of the amount of tax payable by the dealer, and sometimes the whole procedure laid down in the Act for enforcing the liability on the taxpayer. The word “assessment” in its comprehensive sense includes the whole procedure for imposing tax liability on the taxpayer. There can be no doubt, therefore, that the order passed by the Deputy Commissioner is in relation to an assessment, i. e., determination of the tax liability of the dealer.
46. The contention of the learned counsel, Sri Mahadev, appearing for the State, that if the assessment order passed by the Special Commercial Tax Officer did not merge in the Assistant Commissioner’s order and was not an order in relation to an assessment, then it is an order other than “assessment” and, therefore, no time-limit applied to such a case is an argument which is devoid of force. We have already held that the order of the Assistant Commissioner was in relation to an assessment and, therefore, it could have been revised within four years from the date of service of the assessment order on the dealer.
47. The order of the Assistant Commissioner, as has already been stated above, does not relate either to the licence fee or registration fee, or to a proceeding relating to refund of tax. The Assistant Commissioner’s order, therefore, related to an “assessment”, and the Deputy Commissioner’s order being outside the time-limit of four years is evidently time-barred. We, therefore, uphold the order of the Sales Tax Appellate Tribunal and dismiss this tax revision case with costs. Advocate’s fee Rs. 100.
