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Judgment
Jagadisan, J.—An interesting question of law is raised in this appeal from the order of the Board of Revenue, Madras, passed under the
Madras General Sales Tax Act, 1959, and that relates to the power of the Board to interfere with the revised order of assessment of the Deputy
Commercial Tax Officer implementing the order of the Commercial Tax Officer after the expiry of four years from the date of the order of the
Commercial Tax Officer. These two officers functioned under the old Act of 1939.
The sequence of events which have led to the filing of the present appeal are briefly as follows : The appellants are dealers in non-ferrous metals
consisting mainly of brass and copper. Their business consists of purchase of scraps, conversion of the scraps into circles and sheets in their
factory and selling the manufactured products. In respect of the assessment year 1955-56 the Deputy Commercial Tax Officer, Park Town,
determined their net turnover liable to tax as Rs. 24,35,134-3-3. They preferred an appeal to the Special Commercial Tax Officer, Madras City,
the appellate authority which functioned under the Madras General Sales Tax Act, 1939, and were partially successful. The appellate authority re-
fixed the taxable turnover at Rs. 14,39,914-12-6. This order was made on 3rd March, 1958. Giving effect to this appellate order the Deputy
Commercial Tax Officer issued a revised assessment dated 19th March, 1958. The Board of Revenue in exercise of its suo motu powers of
revision issued a notice to the appellants on 22nd February, 1962, asking them to show cause why a turnover of Rs. 9,22,166-2-0 deleted by the
appellate authority should not be included in their turnover in view of the decision of the Supreme Court in Ashok Leyland Ltd. v. State of Madras
[1961] 12 S.T.C. 379 The appellants objected by their letter dated 6th March, 1962, to the proposed action of the Board, but eventually the
Board overruled the objection and passed an order on 10th March, 1962, revising the order of assessment passed by the Deputy Commercial Tax
Officer, Park Town, dated 19th March, 1958, and re-fixing the taxable turnover at Rs. 16,96,189-10-0. The appellants challenged the
correctness of this decision of the Board mainly on the ground that the Board had no jurisdiction to pass the order on 10th March, 1962, when
four years had elapsed from 3rd March, 1958, the date of the order of the appellate authority, the Special Commercial Tax Officer, Madras City.
It is not necessary to consider in this appeal whether the inclusion of the turnover of Rs. 9,22,166-2-0 by the Board purporting to follow the
decision of the Supreme Court in Ashok Leyland Limited v. State of Madras [1961] 12 S.T.C. 379 is well-founded or not. If the appellants can
succeed in convincing this Court that the Board had no power to pass the order of 10th March, 1962, the Board''s order must be struck down on
this ground alone. The Board''s powers of revision are contained in Section 34 of the Madras General Sales Tax Act, 1959- We need not set
down the provision as nothing turns upon its phraseology in this particular case. It is conceded by learned counsel for the appellants that the Board
could in a proper case set aside the order of the Commercial Tax Officer or that of the Deputy Commercial Tax Officer. It is also clear that the
Board would not be entitled to pass any order u/s 34, Sub-Section (1), if more than four years elapse after the passing of the order which is in fact
set aside. In the instant case the Board purported to revise the order of the Deputy Commercial Tax Officer dated 19th March, 1958, and the
stand taken by the Board, and which is now sought to be supported by the learned Government Pleader, is that four years had not run out on 10th
March, 1962, computed from 19th March, 1958. In dealing with the question of jurisdiction raised, the Board observes as follows :
They have contended that the proposed revision is barred by limitation as the order of the Commercial Tax Officer on appeal was passed on 3rd
March, 1958. This is not correct. The order that is called in question is the order of the revised assessment passed by the Deputy Commercial Tax
Officer, Park Town, in his A3/518/55-56 dated 19th March, 1958. Therefore, the revision is well within time as per the decision of the Madras
High Court in the case of Madura Mills Co. Ltd. v. The State of Madras reported in [1962] 13 S.T.C. 124.
We must point out that there is an obvious fallacy in this reasoning of the Board. We must also point out that the decision in the Madura Mills
case, [1962] 13 S.T.C. 124 which is cited as authority in support of the conclusion reached by the Board, is hardly relevant to the question now in
issue.
The order of the Deputy Commercial Tax Officer dated 19th March, 1958, has no independent existence apart from the order of the
Commercial Tax Officer dated 3rd March, 1958. The former was only giving effect to the order of the latter as he was in law bound to do. He did
not, and indeed he could not, exercise any discretion of his in the matter ; and it can well be said that there was no decision or determination by him
in regard to the quantum of assessment of the assessee. In the year 1958 when both the Commercial Tax Officer and the Deputy Commercial Tax
Officer passed their respective orders dated 3rd March, 1958, and 19th March, 1958, the Act that was in force was the repealed Act of 1939.
Section 11 of that Act prescribed the appellate power of the Commercial Tax Officer. That states that the appellate authority may, after giving the
appellant an opportunity of being heard, pass such orders on the appeal as such authority may think fit and every order passed in appeal shall,
Subject to the provisions of Sections 12 to 12-C, be final. There was no provision in that Act to compel the assessing authority which passed the
assessment to give effect to the appellate order. But Rule 15 of the Rules framed under the Act provided that every order of the appellate authority
should be communicated to the appellant and that the order passed in appeal should be given effect to by the assessing authority. The assessing
authority was directed under Rule 15(2) to refund within two months from the date of the communication of the order any excess tax found to have
been collected. Even without a rule like Rule 15 the assessing authority would have been bound to carry out the orders of a higher authority which
in law was clothed with powers to modify, cancel or annul the order of the assessing authority. If that were not the true position appeals would be
purposeless and empty of results. The 1959 Act contains, significantly, a specific provision, Section 31(4), which directs the assessing authority to
pass amended assessment orders reflecting the changes caused by the orders of the appellate authority. That section reads :
Where as a result of the appeal any change becomes necessary in the order appealed against, the Appellate Assistant Commissioner may authorise
the assessing authority to amend such order accordingly and on such amendment being made, any amount over, paid by the appellant shall be
refunded to him without interest or the further amount of tax, if any, due from him shall be collected in accordance with the provisions of this Act,
as the case may be.
It is plain therefore that the order of the Deputy Commercial Tax Officer does not rest on any foundation apart from that afforded by the order
of the Special Commercial Tax Officer dated 3rd March, 1958. In other words, the order of 19th March, 1958, has its roots in the order of the
Commercial Tax Officer made on 3rd March, 1958. If the order of 3rd March, 1958, had become final under the Act, the limitation period of four
years from that date having run out, the Board of Revenue would not be competent to interfere with it under the guise of revising the Deputy
Commercial Tax Officer''s amended assessment in respect of which the bar of limitation may not literally or technically apply. We have grave
doubts whether the Board would not be circumventing the provisions of the Act by purporting to quash a consequential order of the Deputy
Commercial Tax Officer based upon an order of the Special Commercial Tax Officer after it acquires immunity from any statutory attack at the
instance of either the assessee or the State. In our opinion the moment four years expired from the date of the Commercial Tax Officer''s order that
order became steadfastly final and the finality extended and pervaded also to such consequential orders as the Deputy Commercial Tax Officer
might pass as a result of the appellate order.
The Board has failed to comprehend the true scope of the Madura Mills case, [1962] 13 S.T.C. 124 That does not lend any support for the
view taken by the Board on the question of limitation. In that case, Madura Mills Co. Ltd. v. State of Madras [1962] 13 S.T.C. 124 the assessees
were assessed to sales tax on a certain turnover. They appealed to the Commercial Tax Officer for excluding certain items from the turnover. The
Commercial Tax Officer partially allowed the claim, and, in pursuance of this order the Deputy Commercial Tax Officer made a revised
assessment on 28th November, 1952. Thereafter the assessees preferred a revision to the Deputy Commissioner of Commercial Taxes and for the
first time objected to the inclusion of a certain item in the turnover. This however was not the subject-matter of their previous appeal before the
Commercial Tax Officer. The Deputy Commissioner dismissed their objection by his order dated 21st August, 1954. The Board issued a notice to
the assessees on 4th August, 1958, stating that it proposed to revise the assessment of the Deputy Commercial Tax Officer by including in the net
turnover a sum which was wrongly excluded by that officer. The assessees pleaded the bar of limitation urging that four years had elapsed from the
date of the order of the Deputy Commercial Tax Officer dated 28th November, 1952, and that the Board had become funclus officio. This was
rejected by the Board on the ground that time should be computed not from 28th November, 1952, but from 21st August, 1954. A Division
Bench of this Court, to which one of us was a party, held that the subject-matter of revision proceedings before the Board was only the revised
assessment of the Deputy Commercial Tax Officer dated 28th November, 1952, and therefore the Board exercised its powers of revision beyond
the period of limitation prescribed under the Act.
We do not see the relevancy of that citation in the present context. Here the question is whether the Board could exercise jurisdiction beyond
four years from the date of the order of the appellate authority taking advantage of the fact that the order of the said appellate authority was given
effect to by the subordinate officer within the four year period. In the Madura Mills case, [1962] 13 S.T.C. 124 the order of the Deputy
Commercial Tax Officer dated 28th November, 1952, was not an order consequential upon the order of the Deputy Commissioner of
Commercial Taxes dated 21st August, 1954. It is unnecessary to deal further with the Madura Mills case, [1962] 13 S.T.C. 124 as it seems to us
that even a cursory examination of that case would be sufficient to show that the Board cannot invoke its aid to sustain its conclusion.
In our judgment though in form the Board purported to revise the order of the Deputy Commercial Tax Officer dated 19th March, 1958, in
substance and in essence the Board was only concerned to say that the order of the Special Commercial Tax Officer dated 3rd March, 1958, was
erroneous and unsustainable in law. The Board was not competent on 10th March, 1962, to revise the order of the Commercial Tax Officer as
four years had elapsed by that time. This bar of limitation cannot be got over under the pretext of revising the order of the Deputy Commercial Tax
Officer which has no existence independently of the appellate order and which cannot operate proprio vigore. The Board cannot do indirectly what
it cannot do directly. It is plainly impossible for the Board to rely upon the later consequential order of the Deputy Commercial Tax Officer for
purpose of saving limitation. The Board therefore acted in excess of its jurisdiction.
In the result, the appeal is allowed and the order of the Revenue Board is set aside. The appellants will have their costs from the State.
Counsel''s fee Rs. 150.