A.A. Kasi Annamalai Nadar and Company vs Deputy Commercial Tax Officer

Ramaprasada Rao, J.—The assessee is the same in all these petitions. It is a firm which during the relevant period was trading as a

partnership firm and was a ""dealer"" under the provisions of the Madras General Sales Tax Act. The firm used to submit monthly returns under

Form A-II. For the years 1959-60 and 1960-61, when the matter of final assessment for the assessment years in question came up, the petitioner

was asked to be present on a particular date but the notice of hearing given for the said purpose was served beyond three days of such date fixed

for the hearing. Nevertheless, the assessing authority, on the foot that the petitioner did not appear on the date fixed for the hearing of the

assessment proceedings, rendered an ex parte assessment order on 30th November, 1964. For the years 1961-62 and 1962-63, a similar notice

of hearing of the proceedings was fixed for 25th November, 1964. The petitioner was called upon to produce the books of account on that date.

The petitioner wanted time. No time was granted. The result was that the assessing authority assessed the petitioner for the years 1961-62 and

1962-63 on 28th November, 1964. It thus finalised the assessments for the four years as above.

The petitioner, on the ground that it had no adequate opportunity to make its representations before the assessing authority, came up before this

Court under Article 226 of the Constitution in Writ Petitions Nos. 228 to 231 of 1965. By an order dated 3rd March, 1967, this Court allowed

those writ petitions making the following observations :

I feel that no opportunity was given to the petitioner in the instant case to explain the correctness of the returns. I therefore quash the order of

assessment of the Deputy Commercial Tax Officer, Uthamapalayam, and direct to take the returns on file and dispose them of after giving an

opportunity to the petitioner and then assess for the years in question.

On remit, the assessing authority took up the matter once over and issued the impugned notices calling upon the assessee to appear and explain.

It is as against these orders of assessment, the writs of prohibition have been filed.

Incidentally it may be mentioned that the petitioner took one other legal objection that as the firm was dissolved on 16th January, 1967, no

further proceedings to assess the dissolved firm could be undertaken, and therefore also, writs of prohibition have to issue.

In so far as the second contention is concerned, it is no longer available to the petitioner in view of the amendment introduced in the main Act

(Madras General Sales Tax Act) in the shape of Section 19-A.

In so far as the other contention is concerned, Mr. Subramaniam, learned Counsel for the writ petitioner, raises a very curious argument. His

case is that although the original assessments were made u/s 12, by reason of the order of remit made by this Court on 3rd March, 1967, in W.P.

Nos. 228 to 231 of 1965, it should be deemed that the further proceedings can be done only u/s 16 of the Act, and not as if they were

assessments u/s 12. Reliance is placed upon Jaipuria Brothers Limited v. State of U.P. [1965] 16 S.T.C. 494 He would, therefore, state that once

the proposed assessment pursuant to the impugned notice would come within the purview of proceedings u/s 16 of the Act, then the rule of

limitation which circumscribes the said section prevails and that if that were to prevail, the proposal to assess is out of time and therefore the

respondent had no jurisdiction to proceed further and hence the writs of prohibition have to issue.

The argument lies in an illusioned fallacy. It is an illusion, because learned Counsel suggested that the order of remit made by this Court in

exercise of its jurisdiction under Article 226 of the Constitution should be equated to an order made by the statutory functionary under the Madras

General Sales Tax Act. It is no doubt true that if an appellate authority, a revisional authority or even this Court exercising its jurisdiction, as Tax

Revision Court under Sections 37 and 38 of the Madras General Sales Tax Act, discovers any escapement of assessment in the course of hearing

of such matters and directs the appropriate authority to take proceedings further on the foot of such escapement of turnover, then, certainly the

further proceedings"" undertaken by the appropriate authority would be governed by the principle in Section 16 of the Act. Even then, it is a matter

of doubt whether the rule of limitation would strictly be invoked in view of the decision in Sales Tax Officer v. Sudarsanam Iyengar & Sons [1970]

25 S.T.C. 252. But this question as posed does not arise directly in this case.

What is, however, suggested by the learned Counsel for the petitioner is that the order of remit by this Court in exercise of its jurisdiction under

Article 226 of the Constitution is to be deemed to be a direction given by a statutory functionary exercising jurisdiction under the provisions of the

Madras General Sales Tax Act. I cannot agree. The order of remit has been made because this Court was provoked to do so and an invitation

was made for that purpose by the petitioner itself when it sought for the necessary rule under Article 226 of the Constitution. The petitioner was

aware at all material times that the assessment was u/s 12 of the Act. It was not satisfied with the assessment, since it complained that there was a

violation of the principles of natural justice. It came to this Court and corrected the error apparent in the orders impugned in those writ petitions

and it was as a consequence of the discovery of such an apparent error that the order of remit was made by this Court. Such orders made by the

High Court cannot, therefore, be said to be ones made by the statutory tribunals constituted under the Act, as they should be deemed to be ones

made beyond and outside the provisions of the Act.

This apart, the Supreme Court in Additional Assistant Commissioner of Sales Tax v. Firm fagmohandas Vijay Kumar [1970] 25 S.T.C. 74, has

made the position very clear by stating that no turnover could be said to have escaped when once proceedings were properly initiated and were

pending. It cannot be disputed in this case that by an order of remit the proceedings have been resurrected. Nevertheless, the assessment

proceedings have not ceased to be pending. If, therefore, there is this continuity in the process of assessment and there has not been a completion

of the assessment process in a manner known to law, then, it obviously follows that the assessment proceedings are on and are still pending and

that if they are still pending they are pending as assessments u/s 12, and there cannot be any metamorphosis of such proceedings from the one u/s

12 to that u/s 16. In this view of the matter, the writ of prohibition asked for is misconceived. But, as an interesting question has been raised, I am

not inclined to give costs.

The rule in each of these writ petitions is discharged, and the writ petitions are dismissed. There will be no order as to costs.