{"id":48746,"date":"2002-12-12T00:00:00","date_gmt":"2002-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tvl-new-krishna-bhavan-vs-the-deputy-commercial-tax-officer-on-12-december-2002"},"modified":"2014-12-04T14:48:29","modified_gmt":"2014-12-04T09:18:29","slug":"tvl-new-krishna-bhavan-vs-the-deputy-commercial-tax-officer-on-12-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tvl-new-krishna-bhavan-vs-the-deputy-commercial-tax-officer-on-12-december-2002","title":{"rendered":"Tvl.New Krishna Bhavan vs The Deputy Commercial Tax Officer on 12 December, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Tvl.New Krishna Bhavan vs The Deputy Commercial Tax Officer on 12 December, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS.\n\nDATED: 12\/12\/2002\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN.\nAND\nTHE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN.\n\nWRIT PETITION NO. 4625 of 2001 AND WRIT PETITION NO.4626 of 2001\n\nTvl.New Krishna Bhavan,\nrep by its Proprietor,\nV.R.Krishnan,\n201, Bazaar Street,\nVandavasi,\nN.A.A.District.         ...Petitioner   in both W.Ps.\n\n-VS-\n\n1.The Deputy Commercial Tax Officer,\n  Vandavasi, N.A.A. District.\n\n2.The Appellate Assistant Commissioner,\n  Vellore.\n\n3.The Joint Commissioner III,\n  (S.M.R.) (CT), Chepauk,\n  Chennai. 600 005.\n\n4.The Tamil Nadu Taxation\n  Special Tribunal,rep by its\nRegistrar, Chennai.600 001.  .....  Respondents in both W.Ps.\n                                        ...\n                Petitions filed under  Article  226  of  the  Constitution  of\nIndia, praying to issue a Writ of Cetiorari,as stated therein.\n\n!For Petitioner        ......        Mr.Murali Kumaran\n                                    for M\/s MeGan Law Firm.\n                                    in both W.Ps.\n\n^For Respondents in                 Mr.T.Ayyasamy\nBoth W.Ps.            .....         Spl.Govt.Pleader\n                                    for Taxes.\n\n:ORDER\n<\/pre>\n
        (Order of the Court was made by K.RAVIRAJA PANDIAN,J).\n<\/p>\n
                The  two  Writ  Petitions  are filed against the orders of the
\nSpecial Tribunal made in O.P.No.714 of1998 dated 19.3.1998 and Tax Case Appeal
\nNo.4 of 1997 dated 5.1.2001.\n<\/p>\n
                2.The short facts for the disposal of the Writ  Petitions  are
\nthat the  assessee is a hotelier.  It reported a total and taxable turnover of
\nRs.5,80,827.95 and ‘Nil’ respectively for the assessment  year  1989-90.    On
\ncheck of accounts, the Assessing Authority found several defects.  The defects
\nwere  that the sales per day has been suppressed and the normal sales were not
\ndisclosed that the gross profit of 33% was  found  to  be  too  low  that  the
\npurchases  of  raw  materials  were  not  covered  by bill and the opening and
\nclosing stocks were not prepared and produced.    Hence  the  Junior  Research
\nOfficer conducted sales observation on 15.12.1989 and 6.3.1990.  Having regard
\nto  the several defects, it was proposed to reject the returns and accounts as
\nincorrect and incomplete and to determine the total taxable turnover according
\nto the best judgment assessment.  The sale on 15.12.1989 was  Rs.3,514.75  and
\non 6.3.1990  was  Rs.1,900.15.    The  average  sale per day was worked out to
\nRs.2,708\/- and the total sale for the year was worked out  to  Rs.9,83,004.00.
\nIt  was found that all the purchases of provisions were made from unregistered
\ndealer and not even a bought note, was prepared and produced.   The  Assessing
\nAuthority treated the purchases suppression of Rs.7,157\/- as monthly purchases
\nand multiplied  the  same  by  12  for  the  entire year.  Thus, the Assessing
\nAuthority arrived at a figure of Rs.90,884\/-.   He  proceeded  to  assess  the
\npurchases  at  the  appropriate  rate  by  bringing  the  taxable  turnover to
\nRs.10,73,888\/-.  As against that order, the writ petitioner  filed  an  appeal
\nbefore  the  first  appellate  authority-the Appellate Assistant Commissioner.
\nThe  Appellate  Assistant  Commissioner  held  that   the   determination   of
\nRs.9,83,004\/-  as  sales turnover for the entire year was perfectly justified.
\nHowever, with regard to the purchase turnover of Rs.90,884\/-, he held that  it
\nwas  excessive  and he adopted one time addition, thus arriving at a figure of
\nRs.14,314\/-.  In view of his modification in respect of the purchase addition,
\nthe total  and  taxable  turnover  came  to  Rs.9,97,318\/-,  being  less  than
\nRs.10,00,000\/-  and  there  was  no  tax  liability  on the assessee since the
\nturnover upto Rs.1 0,00,000\/- was exempted from tax by notification.  The said
\norder of the first Appellate Authority-Appellant  Assistant  Commissioner  has
\nbeen taken  by  the  Joint Commissioner on suo motu revision.  In the suo motu
\nproceedings the Joint  Commissioner  proposed  to  revise  the  order  of  the
\nAppellate  Assistant  Commissioner  in  so  far  as  it  related to Section 7A
\nturnover.  The petitioner was given an  opportunity  to  file  its  objection.
\nAfter hearing the objection, the Joint Commissioner justified the order of the
\nAssessing Authority  in  estimating Section 7A turnover at 12 times.  However,
\nhe found that for some of the goods like Sombu, Pepper, Jeera and Fried  gram,
\nno  estimation  was called for because these goods are normally from upcountry
\ndealers and manufacturers and on that ground, he reduced  the  total  turnover
\narrived  at  by  the  Assessing  Officer  to Rs.25,000\/- and fixed the taxable
\nturnover as  Rs.10,08,004\/-.    That  order  was  carried  on  appeal  by  the
\npetitioner herein  in Tax Case Appeal before the Special Tribunal.  In the Tax
\nCase Appeal, the one and the only contention raised by the writ petitioner was
\nthat when the  Joint  Commissioner  has  taken  the  order  of  the  appellate
\nauthority  for  revision  suo  motu  by  considering  a  part of the order was
\nprejudicial to the interest of the Revenue, the entire  order  including  that
\npart  of  the  order,  which went against the assessee has to be taken for the
\npurpose of revision and the petitioner should have been  allowed  to  question
\nthe  adverse  part  of  the order notwithstanding the fact that objecting that
\nportion of the order the petitioner has not filed any  appeal.    The  Special
\nTribunal  has  negatived  the  submission on the ground that Section 34 of the
\nTamil Nadu General Sales Tax Act (hereinafter referred to as  ‘the  Act’)  did
\nnot  provide  for any such contingency for the assessee to agitate that point,
\nwhich went against  him,  in  the  suo  motu  proceedings  subsequent  to  the
\namendment made  to Section 34 of the Act.  The correctness of the order of the
\nSpecial Tribunal is challenged in the Writ Petition No.4626 of 2002 .\n<\/p>\n
                3.When the appeal was pending before the Special Tribunal, the
\npetitioner filed O.P.714 of 1998 challenging the correctness of the  order  of
\nthe first Appellate Authority-Appellate Assistant Commissioner dated 7.8.1991,
\nsustaining  the  order  of assessment in respect of sales turnover in a sum of
\nRs.9,83,004\/-.  The Special Tribunal has dismissed the O.P on the ground  that
\nthe  order sought to be questioned in the O.P was taken on revision and orders
\nwere passed after  hearing  the  petitioner.    As  against  that  order,  the
\npetitioner filed a statutory appeal before the Special Tribunal and obtained a
\nstay order  therein.    Therefore,  the  O.P  directed  against  the Appellate
\nAssistant Commissioner is no longer suvives.  The said order has been impugned
\nin W.P.No.4 625 of 2001.\n<\/p>\n
                4.Mr.Murali  Kumaran,  learned  counsel  for  the   petitioner
\nvehemently contended that even after the amendment introduced to Section 34 of
\nthe  Act, whereby the provision has been modified to the effect that the Joint
\nCommissioner could invoke the suo motu power only when he considered that  the
\norder  of the Appellate Assistant Commissioner was prejudicial to the interest
\nof the Revenue, it is open for the assessee to agitate that part of the  order
\nof  the  Appellate  Assistant  Commissioner,  which  went against the assessee
\nbefore the Joint Commissioner even without filing an appeal against that  part
\nof the  order.    He further contended that the reasoning given by the Special
\nTribunal for non  suiting  the  petitioner  to  challenge  the  order  of  the
\nAppellate  Assistant  Commissioner  dated 7.8.1991 in the Original Petition is
\nnot at all correct.  The mere filing of an appeal against  the  order  of  the
\nJoint   Commissioner   could  not  preclude  the  petitioner  to  agitate  the
\ncorrectness of the order passed by the Appellate Assistant Commissioner  in  a
\nproceedings under Section 7 of the Special Tribunal Act.\n<\/p>\n
                5.On  the other hand, the learned Government Pleader submitted
\nthat the order of the Assessing Officer itself is an order made on estimation,
\nit is not as if the taxable turnover was arrived at on the basis of single day
\nsurvey but the taxable turnover has been arrived at on  the  basis  of  survey
\nconducted  on  two different dates and an average of two different dates sales
\nhas been taken as basis for calculating the taxable turnover and as  such,  no
\nexception could  be  taken  to  this  method.    He further submitted that the
\nargument of the learned counsel for the petitioner regarding the power of  the
\nJoint  Commissioner  in  suo motu proceedings to consider the grievance of the
\npetitioner in respect of the finding, which went  against  him  in  the  order
\npassed  by  the  Appellate  Tribunal  also  cannot be accepted, because of the
\njudgment of the Division Bench of this Court as well as the  decision  of  the
\nSupreme  Court,  which  has considered the scope of Section 34 of the Act, and
\nheld the assessee cannot invoke the suo motu provisions which imply that in  a
\nsuo  motu  revision under Section 34 of the Act, the petitioner cannot agitate
\nthat part of the order,  which  was  decided  against  him  by  the  Appellate
\nAuthority.\n<\/p>\n
                6.We heard the arguments of the learned counsel on either side
\nand perused the materials on record.\n<\/p>\n
                7.The  argument  of the learned counsel Mr.Murali Kumaran that
\nafter initiating the suo motu proceedings  by  the  Joint  Commissioner  under
\nSection  34,  it  is  open  to  the  assessee  to  agitate  before  the  Joint
\nCommissioner that part of the appellate order, which went against the assessee
\ncannot be accepted.\n<\/p>\n
                8.Under the scheme of the Act, the assessees are provided with
\nan appellate remedy under Section 31, a second appellate remedy under  Section
\n36  and  Revisional remedy before the Special Tribunal under Section 38 of the
\nTamil Nadu General Sales Tax Act.  Even if the assessee  considered  that  the
\nassessment  order contained error apparent on the face of the record, he could
\ninvoke the provisions under Section 55 of the Act to rectify the errors.   But
\nif  an order of assessment has been erroneously framed to the prejudice of the
\nRevenue, there is no provision, which  authorises  the  Revenue  to  take  the
\nmatter on  appeal.    Hence  as  seen from Section 34, the suo motu revisional
\npower is exclusively given to the Joint Commissioner to revise  the  order  or
\nproceedings  recorded  by the statutory authorities under Sections 4A, Section
\n12A, Section 14, Section 15 or sub-section (1) or (2)  of  Section  16  or  an
\norder  passed  by the Appellate Assistant Commissioner under subsection (3) of
\nSection 31 or by the Appellate Deputy Commissioner under  sub-section  (3)  of
\nSection 31-A or by the Deputy Commissioner under sub-section (1) of Section 32
\nor  sub-section  (3)  of  Section 33, if such order or proceedings recorded is
\nprejudicial to the interest of the Revenue.  Under Section  34,  no  right  is
\naccrued to  in  favour  of  the  assessee.    But power is vested on the Joint
\nCommissioner to correct the order, which  he  considered  prejudicial  to  the
\nRevenue.  The language employed in the Section clearly indicates the intention
\nof  the  Legislature  to  provide  administrative  machinery by which a higher
\nOfficer may review the orders of his subordinates and  take  necessary  action
\nupon such review.  In that proceedings, we are of the view that it is not open
\nto  the  assessee  to  agitate  some  other  issue, which is not basis for the
\ninvocation of the suo motu revision.\n<\/p>\n
                9.When a question raised as to whether an assessee can  invoke
\nsuo motu provision vested with the Deputy Commissioner under Section 32 of the
\nTNGST Act which is identically worded as that of Section 34, this Court in the
\ncase of STATE OF TAMIL NADU .VS.  SAMCO METALS AND ALLOYS (PRIVATE) LTD., (104
\nSTC page 616) has held in unequivocal terms that the assessee could not invoke
\nthe revisional jurisdiction of the Deputy Commissioner to revise or modify the
\nassessment.   The  Deputy  Commissioner could revise the assessment only if he
\ncomes to the conclusion that the assessment made by the Officer was  erroneous
\nand prejudicial  to  the  interest of the Revenue.  The assessee could not say
\nthat the assessment made by the Assessing Officer was erroneous or prejudicial
\nto the interest of the Revenue.  Therefore, the assessee  could  not  approach
\nthe  Deputy  Commissioner  to invoke his revisional jurisdiction under Section\n<\/p>\n
32.\n<\/p>\n
                10.The pari materia provision of the Andhra  Preadesh  General
\nSales  Tax  Act  was  the  subject matter for consideration before the Supreme
\nCourt in the case of STATE OF ANDHRA PRADESH .VS.  LAKSHMAIAH SETTY  AND  SONS
\n(94 STC  190 (SC).  In that case, the Supreme Court has held that the validity
\nof assessment order must be tested by the aggrieved dealer  in  an  appeal  or
\nrevision provided under the Act and in no other way.  The dealer cannot invoke
\nthe suo  motu  power  of the authorities.  The suo motu power was conferred on
\nhigher authority to correct the errors  of  law  or  to  correct  improper  or
\nirregular  procedure  or illegality in the procedure to safeguard the interest
\nof the Revenue as there was no express power given to the  State  to  file  an
\nappeal against the order of assessment.\n<\/p>\n
                11.In  the  present  case,  it  might be argued that since the
\nassessee is aggrieved against the  assessment  order,  by  which  the  taxable
\nturnover  was  arrived at more than Rs.10,00,000\/- over and above the exempted
\nlimit, he filed  an  appeal  before  the  appellate  authority.    Though  the
\nappellate  authority  has  confirmed the sales turnover, which confirmation is
\nagainst the interest of the assessee, however, reduced the  purchase  turnover
\nthereby the taxable turnover was reduced to below Rs.10,00,000\/- ,the exempted
\nlimit.   Having  regard  to the exemption granted from payment of tax upto the
\nturnover of Rs.10,00,000\/- the assessee was not liable to pay tax.   Hence  he
\nhas  not  taken  the  adverse  finding confirmed by the appellate authority in
\nappeal.  The need to agitate the adverse finding arose only when the order  of
\nappellate authority was taken in Revision suo-motu.  Though the argument seems
\nto  be  somewhat  appealing  on  the first blush, if we construe the appellate
\nprovisions under Sections 31 and 36, the right of appeals are  not  restricted
\nto the event of payment of tax arose.  If the assessee is not accepting to the
\nfinding even when no tax liability arises, he can appeal against that finding.
\nIf the contention of the assessee is accepted that would amount to enlarge the
\nscope  of the provision of Section 34 by converting the same as another appeal
\nin disguise, which cannot be legislative intend in enacting Section 34 and not
\npermissible with regard to the language employed in the provision.\n<\/p>\n
                12.Even on merits also, we are of the view that the assessment
\nitself is based on survey conducted on two different dates.  Both the sales as
\nwell as purchase turnover have been  arrived  at  by  giving  reasons  by  the
\nassessing  Officer,  which was confirmed by the Joint Commissioner and further
\nconfirmed by the Special  Tribunal.    The  Joint  Commissioner  has  given  a
\nconsiderable  relief  in  respect  of  the  purchase of Menthi, sombu, pepper,
\nJeera, Fried Grams on the ground that those purchases are upcountry purchases.
\nHence in the order passed on  estimation,  this  court  while  exercising  the
\njurisdiction  under  Article  226  of  the Constitution would seldom interfere
\nunless or otherwise some glaring mistake has been pointed out by the assessee.
\nIn this case, the Assessing Authority has taken a reasonable view,  which  has
\nbeen  further  affirmed  by  the  Joint  Commissioner  in a suo motu revision.
\nObviously the first Appellate Authority has not taken  into  consideration  of
\nthe  purchase turnover in respect of the coffee powder and that was the reason
\nfor the initiation of the suo motu proceedings.  When that being the position,
\nwe find no reason, much less any valid reason so  as  to  interfere  with  the
\norder passed in the appeal.\n<\/p>\n
                13.The  other  writ  petition  in W.P.No.4625 of 2001 is filed
\nchallenging the order of the Appellate Assistant Commissioner made on  7.8.199\n<\/p>\n
1.That  order  was  revised  by  the  Joint  Commissioner  by  his order dated
\n2.11.1995.  As against that order, the petitioner filed an appeal  in  T.C.(A)
\nNo.4 of  1997  before  the Special Tribunal.  When the appeal was pending, the
\npetitioner thought it fit to challenge the order of  the  Appellate  Assistant
\nCommissioner dated 7.8.1991 in the year 1998 by filing Original Petition under
\nSection 7  of  the Special Tribunal Act.  We find no error in the order of the
\nSpecial Tribunal in dismissing the O.P for the reasons stated therein.    When
\nthe  order  dated  7.8.1991  has been revised in the year 1995 and the revised
\norder was also taken on appeal in the year 1997 and pending before the Special
\nTribunal, the petitioner cannot challenge the order dated 7.8.1991 in O.P.  We
\nhave recorded our finding already on merits also.  Hence there is no merit  in
\nthe Writ Petition and it is also liable to be dismissed on the point of laches
\nalso.\n<\/p>\n
                14.Accordingly,   both   the  Writ  Petitions  are  dismissed.
\nHowever, there is no order as to costs.\n<\/p>\n
Index:Yes.\n<\/p>\n
Website:Yes.\n<\/p>\n
nyr<\/p>\n
To\n<\/p>\n
1.The Deputy Commercial Tax Officer,
\nVandavasi, N.A.A.  District.\n<\/p>\n
2.The Appellate Assistant Commissioner,
\nVellore.\n<\/p>\n
3.The Joint Commissioner III,
\n(S.M.R.) (CT), Chepauk,
\nChennai.  600 005.\n<\/p>\n
4.The Tamil Nadu Taxation
\nSpecial Tribunal,rep by its Registrar,
\nChennai.600 001.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Tvl.New Krishna Bhavan vs The Deputy Commercial Tax Officer on 12 December, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS. DATED: 12\/12\/2002 CORAM THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN. AND THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN. WRIT PETITION NO. 4625 of 2001 AND WRIT PETITION NO.4626 of 2001 Tvl.New Krishna Bhavan, rep by its […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-48746","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nTvl.New Krishna Bhavan vs The Deputy Commercial Tax Officer on 12 December, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tvl-new-krishna-bhavan-vs-the-deputy-commercial-tax-officer-on-12-december-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tvl.New Krishna Bhavan vs The Deputy Commercial Tax Officer on 12 December, 2002 - 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