Senthil Enterprises vs State of Tamil Nadu

Janarthanam, J.—Desirable it is, to pen down a common judgment in all these actions, inasmuch as the points involved for consideration are

one and the same, relatable to the same assessee-dealer, in respect of four assessment years, namely, 1984-85 to 1987-88, concerning the use of

the goods for a purpose other than the one for which the goods had been incorporated in the certificate of registration, culminating in the imposition

of penalty u/s 10-A, for violation or infraction of clause (d) of section 10 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956 - for short

CSTA"" or Principal Act"").

(a) The assessee-dealers - Senthil Enterprises, having their place of business at door No. 121, Sarojini Street, Ramnagar, Coimbatore - 641

009 are dealers registered under CSTA.

(b) They, it appears, filed an application to the concerned authority in form ""A"" specifying the goods to be incorporated in the certificate of

registration. In the said application, they, it appears, had stated that their business was mainly dealing in explosive items. They had specified the

explosives under the caption ""for resale"", so as to avail of the benefit of concessional rate of taxation at four per cent on inter-State purchases of

explosives they have made for purpose of resale.

(c) They, it appears, filed an application subsequently on April 1, 1984 to amend the original certificate of registration issued in their favour. The

amendment sought for in the said application was for the inclusion of ""explosives"" under the caption ""for use in mining.

(d) The amendment prayed therefore by the assessee-dealers was granted, in the sense of including the ""explosives"" under the caption ""for use in

mining"" with effect from April 3, 1984. Though they had sought for such an amendment, yet, they did not pray for any amendment, as relatable to

their business activity concerning mining, apart from mainly dealing in explosive items, as stated in the original application culminating in the

certificate issued therefor.

(e) For mining - whether available in the surface soil or in sub-soil - whether in ryotwari patta land or any Revenue land belonging to the

Government - the requisite licence or permission is necessary from the competent authority, as had been specifically provided in the Mines and

Minerals (regulation and Development) Act, 1957 [Act. No. 67 of 1957 - for short ""MM (RD) Act""] and the Mineral Concession Rules - Central

or State - framed thereunder. The assessee-dealers, it appears, did not have the requisite licence or permission from the competent authority to

indulge in an activity of mining.

(f) The Deputy Commercial Tax Officer, Enforcement IV, Coimbatore, it appears, made a surprise inspection at 11.30 a.m. on June 27, 1985 of

the place of business of the assessee-dealers. During the course of such inspection, a statement, it is said, had been recorded from one R.

Prabhakaran, the manager-in-charge of the business of the assessee-dealers. The statement so recorded disclosed the nature of the activity of

assessee-dealers involving in utilisation of explosives for depending of wells and blasting of rocks.

(g) The Commercial Tax Officer, Trichy Road Circle, Coimbatore, imposed penalty, in a quantified sum upon the assessee-dealers u/s 10-A, in

lieu of prosecution for violation or infraction of section 10(d) of CSTA for the assessment years 1984-85, 1985-86, 1986-87 and 1987-88,

holding that the activity of the assessee-dealers was not ""mining activity"". The order imposing penalty upon the assessee-dealers relatable to 1984-

85 is dated March 22, 1990, while the orders for the rest of the three assessment years, namely, 1985-86 to 1987-88 are all of even date, that is

to say, April 9, 1990.

(a) the assessee-dealers, aggrieved by the said imposition of penalty filed appeals in C.S.T. Nos. 671 and 673 of 1990 before the Additional

Appellate Assistant Commissioner (CT)(FAC), Coimbatore.

(b) By a common order dated July 6, 1990 the said Additional Appellate Assistant Commissioner set aside the penalty imposed upon the

assessee-dealers for the said assessment years holding that the activity of the assessee-dealers is one falling under ""mining activity"".

(a) On March 14, 1991, the joint Commissioner (SMR), Madras-5, in his proceedings Ref. No. N2/101553/90 issued a notice u/s 34 of the

Tamil Nadu General Sales Tax Act, 1959 - for short, ""TNGSTA"") to the assessee-dealers requiring them to show cause as to why the order of

the Appellate Assistant Commissioner should not be set aside and thereby the order of the assessing officer is restored, in the sense of confirming

the penalty imposed upon them. The said Joint Commissioner, however, dropped the proceedings, by his order dated March 21, 1991.

(b) Thereafter, it appears, the said Joint Commissioner was transferred. The successor-Joint Commissioner, in his proceedings, Ref. No.

M2/113262/91 dated November 25, 1991, issued a notice u/s 55 of TNGSTA to the assessee-dealers, in a bid to rectify the error apparent on

the face of the records, inviting their objections thereto.

(c) The assessee-dealers filed their objections dated December 12, 1991 sating that as a matter of fact, detailed objections had been filed by them

to the earlier show cause notice issued by his predecessor-Joint Commissioner and thereafter only, the said Joint Commissioner dropped further

proceedings. They would further state that there was no error apparent on the face of the record for the successor-joint Commissioner to interfere

with and therefore it is, the order passed by predecessor-Joint Commissioner had become final on the termination of the proceedings in their

favour.

(d) The successor-Joint Commissioner, overruling the objections filed by the assessee-dealers, by his order dated August 3, 1992 set aside the

orders of the Additional Appellate Assistant Commissioner (CT)(FAC), Coimbatore, and thereby restored the order of the assessing officer,

which culminated in the imposition of penalty upon the assessee-dealers u/s 10-A, in lieu of 10(d) CSTA in respect of all the four assessment

years, giving rise to the present actions - Tax Case (Appeal) Nos. 258 to 261 of 1993.

(a) During the course of arguments, certain subsequent events relatable to the user of explosives by the assessee-dealers in the activity of mining

had been brought to our notice. It appears, the inclusion of ""explosives"" under the caption ""mining"" in the certificate of registration had been

cancelled by the Commercial Tax Officer, Trichy Road Circle, Coimbatore. Consequently, the assessee-dealers resorted to knock at the doors of

this Court under article 226 of the Constitution of India, by filing W.P. No. 15820 of 1991 [Senthil Enterprises v. Commercial Tax Officer [1994]

95 STC 78 (Mad.) praying for issuance of a writ of mandamus to direct the Commercial Tax Officer, Trichy Road Circle, Coimbatore to re-

incorporate ""explosives"" under the caption ""mining"" in the certificate of registration.

(b) A learned Judge of this Court, by order dated February 18, 1994 (Senthil Enterprises v. Commercial Tax Officer [1994] 95 STC 78 allowed

the writ petition mandating the Commercial Tax Officer, Trichy Road Circle, Coimbatore, to re-incorporate ""explosive"" under the caption ""mining

in the certificate of registration, of the assessee-dealers holding their activity of deepening of wells and blasting of rocks as tantamounting to ""mining

operation"".

The Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Coimbatore-18, (for short ""the Tribunal""), by a common order dated August

30, 1994 rendered in T.A. Nos. 505, 506, 559, 560 and 603 of 1992 and 516 of 1993 held that the activity of the assessee-dealers in deepening

wells and blasting of rocks tantamounts to ""mining operations"" and in that view of the matter, set aside the penalty imposed upon the assessee-

dealers for various assessment years covered by the said appeals.

From the pith and submissions of Mr. C. Natarajan, learned Senior Counsel representing Mr. N. Inbarajan, learned counsel appearing for the

assessee-dealers and Mr. K. Elango, learned Government Advocate (Taxes), representing the Revenue, the points, as below emerge for

consideration :

(1) Whether the assessee-dealers could be stated to have used ""explosives"" in ""mining"", in the activity of ""deepening of wells and blasting of rocks

within sub-section (3) of section 8 of CSTA ?

(2) Whether the assessee-dealers had the benefit of reasonable excuse, having regard to the different interpretations on the expression ""use in

mining"" at different stages of appeal and revision.

(3) Whether the successor-Joint Commissioner had jurisdiction to exercise the power u/s 34 read with section 55 TNGSTA, having regard to the

fact that the very issue had been enquired into and proceeding dropped, at an earlier stage by the predecessor-Joint Commissioner ?

We may now enter into the arena of discussion, in seriatim, as relatable to the points framed above in the light of the factual matrix and the law

applicable thereto.

Point No. 1 : Section 10(d) of CSTA, which is relevant for the present purpose, reads as under :

Penalties. - if any person,

(a) to (c)...........

(d) after purchasing any goods for any of the purpose specified in clause (b) or clause (c) or clause (d) of sub-section (3) of section 8 fails, without

reasonable excuse, to make use of the goods for any such purpose;

(e) to (f).........

he shall be punishable with simple imprisonment which may extend to six months, or with fine, or with both; and when the offence is a continuing

offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.

(a) Section 8 deals with rates of tax on sales in the course of inter-State trade or commerce, Sub-section (1) thereof prescribes :

Every dealer, who in the course of inter-State trade or commerce -

(a) sells to the Government any goods; or

(b) sells to a registered dealer other than the Government goods of the description referred to in sub-section (3);

shall be liable to pay tax under this Act, which shall be four per cent of his turnover.

(b) sub-section (3)(b) thereof reads as under :

(3) the goods referred to in clause (b) of sub-section (1) -

(a)......

(b) are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for

resale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for

sale or in mining or in the generation or distribution of electricity or any other form of power.

(c) The word ""mining"", as referable to sub-section (3)(b) thereof, was not there, when CSTA was enacted in 1956 and the said sub-section (3)(b)

thereof then stood as below :

In any other case, are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being

intended for resale by him in the manufacture of goods for sale or for use by him in the execution of any contract......

(d) CSTA was amended by the Central Sales Tax (Second Amendment) Act, 1958 (Act No. 31 of 1958 - for short ""Amendment Act"").

(e) Section 5 of the said Amendment Act amended section 8 of the principal Act (CSTA) and the relevant amendment brought to sub-section (3)

(b) incorporating ""mining"" is reflected as below :

(3) The goods referred to in clause (b) of sub-section (1) -

(a)........

(b) In the case of goods, other than declared goods are goods of the class or classes specified in the certificate of registration of the registered

dealer purchasing the goods as being intended for resale by him or subject to any rules made by the Central Government in this behalf, for use by

him in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of

power,........"".

(a) In exercise of the power conferred by sub-section (1) of section 13 of CSTA, the Central Government made the Central Sales Tax

(Registration and Turnover) Rules, 1957 [for short ""CST (R&T) Rules""]. Under rule 3 of the said Rules, an application for registration u/s

7(1)/7(2) of CSTA has been prescribed in form ""A"". Various columns or heads had been provided under the said form ""A"" requiring certain

particulars to be furnished therein. Columns 16 and 17 in the said form - relevant for our present purpose - prescribe :

The following [Here wnter the name of the goods or classes of goods against each category.] goods or classes of goods are purchased by the

dealer in the course of inter-State trade or commerce for -

[Strike out portion or paragraph whichever is not applicable.] (a) resale

(b) use in the manufacture or processing of goods for sale.

(c) use in mining

(d) use in the generation or distribution of electricity or any other form of power.

(e) use in the packing of goods for sale/resale.

We manufacture, process, or extract in mining the following classes of goods or generate or distribute the following form of power, namely :

...........

(b) Under rule 5(1) of the said Rules, the certificate of registration is issued in form ""B"". The certificate of registration is issued, pursuant to the

particulars furnished in the application filed in form ""A"",

(c) The certificate of registration in form ""B"" also contains a column as below :

The dealer manufactures, processes or extracts in mining, the following classes of goods or generates or distributes the following form of power,

namely :

...........

(a) It is thus clear that under the scheme of the Act, as reflected under the various provisions, rules and forms prescribed, as extracted above,

the assessee-dealers are required to state in a specified fashion in the application filed in form ""A"", whether the goods required to be incorporated

in the certificate of registration is :

(a) for the purpose of resale;

(b) for use in the manufacture or processing of goods for sale;

(c) for use in mining;

(d) for use in the generation or distribution of electricity or any other form of power; or

(e) for use in the packing of goods for sale/resale.

(b) This apart, they have to say that what sort or kind of goods are manufactured, or processed or extracted in mining. The certificate of

registration in form ""B"" is issued by the concerned authority accordingly, of course, deriving subjective satisfaction as to the purpose for which the

goods or class of goods are required to be incorporated in the certificate of registration.

(a) The activity of the assessee-dealers, as we have already adverted to, that is to say, deepening of wells and blasting of rocks ever at all be

construed as a ""mining activity"" under the provisions of CSTA ? Mr. C. Natarajan, learned Senior Counsel appearing for the assessee-dealers

would submit that the expression ""mining"" used in sub-section (3)(b) of section 8 CSTA is comprehensive enough to take in its fold in a liberal

manner all those activities associated with ""mining activities"" and for this purpose, he drew our attention to the synonyms or meaning ascribed to the

word ""mining"" in Corpus Juris Secundum, Volume L VIII at page 14; the Law Lexicon by Mr. P. Ramanatha Aiyar at pages 1231 to 1233 and

Prem''s Judicial Dictionary, Volume II - 1992 at page 1038. He also drew our attention to the relevant provisions of the Mines Act, 1952 (Act

No. 35 of 1952) and the MM (R&D) Act in a bid to understand the term ""mining"".

But, on the facts and in the circumstances of these cases, we rather feel that there is no need at all to refer to the meaning or synonyms

ascribed to the term ""mining"", as defined in Corpus Juris Secundum, Law Lexicon or Prem''s Judicial Dictionary, the Mines Act and MM (R&D)

Act and if we go by meaning of the term ""mining"" as defined therein, pretty certain it is that the activity of the assessee-dealers - deepening of wells

and blasting of rocks - one of the various activities associated with the operation of mining would tantamount to ""mining activity"".

The moot question that arises for consideration is as to whether such an enlarged definition of ""mining"" is contemplated under the scheme, as

reflected by various provisions under CSTA. The answer, we rather feel, to such a question cannot be anyone, other than an emphatic ""no"", if one

sifts or scans the objects and reasons for the inclusion of the term ""mining"" in section 8(3)(b) of CSTA and the object for which the Mines Act and

MM (R&D) Act had been enacted.

(a) The object for which the Mines Act had been enacted in reflected as under :

An Act to amend and consolidate the law relating to the regulation of labour and safety in mines.

(b) The object for which MM (R&D) Act had been enacted is as under :

An Act to provide for the regulation of mines and the development of minerals under the control of the Union.

There is no pale of controversy that the object for the incorporation of the statutory provisions, in the shape of section 8 providing for

concessional rates of taxation on sale in the course of inter-State trade or commerce is for the promotion of inter-State trade of commerce. In

order to develop mining industries, electricity undertakings, etc., as registered dealers, the Amendment Act included them in section 8(3)(b) so as

to enable them to purchase inter-State trade prescribed goods at concessional rates of taxation, obviously in a bid to promote inter-State trade or

commerce and that is getting reflected by the statement of objects and reasons clause, which reflects as below :

The Bill seeks to make the following amendments :-

(i) mining industries, electricity undertakings, etc., as registered delears, will be enabled to purchase in inter-State trade prescribed goods at the

concessional rate of tax......

Though the assessee-dealers were able to get incorporated in the certificate of registration ""explosives"" under the caption ""for use in mining"" by

filing necessary application for the amendment of the certificate issued in their favour, yet, as already stated, they did not take steps to include in the

certificate of registration, their business activity as relatable to ""mining"", apart from dealing in ""explosives items"". Further, they are not armed with

any licence or permission to indulge in the activity of mining, when especially, sub-section (1) of section 4 of MM (R&D) Act prescribes that no

person shall undertake any prospecting or mining operation in any area, except under and in accordance with the terms and conditions of a

prospecting licence or, as the case may be, a mining lease granted under this Act and the Rules made thereunder.

The activity done by the assessee-dealers, as already stated, is to indulge in deepening of wells and blasting of rocks by the use of explosives.

Even the blasting of rocks, it appears, by the use of explosives, has been done only for the purpose of deepening the wells. Deepening of wells and

blasting or rocks, by the use of explosives by the assessee-dealers is permissible by obtaining the necessary and requisite licence under the

Explosives Act, 1884 (Act No. 4 of 1884). The possession of licence under the Explosives Act, by the assessee-dealers for carrying on their

activity of blasting or rocks and deepening of wells had been referred to by the Tribunal in disposing of certain appeals of the assessee-dealers

relatable to the subsequent assessment years by order dated August 30, 1984, about which we have made a reference in paragraph 6 supra in the

process of summation of facts of the case. The carrying of such operations by the assessee-dealers can, by no stretch of imagination, be stated to

tantamount to ""mining"", on the face of the salient provisions adumbrated under CSTA. The application in form ""A"" and the certificate of registration

in form ""B"" make it crystal clear that ""mining activity"", as contemplated under CSTA is restricted to excavation of some goods from underneath the

earth and for such purpose alone ""explosives"" incorporated under the caption ""for use in mining"" can be used and for no other purpose.

No doubt there is a decision of a learned single Judge in writ proceedings [See Senthil Enterprises v. Commercial Tax Officer [1994] 95 STC

78 (Mad.), about which we have referred to in paragraph 5(a) supra in the summation of facts of the case holding that the activity of the assessee-

dealers - deepening of wells and blasting of rocks - would tantamount to ""mining"" for the purpose of CSTA. We agree to disagree with the views

so expressed by a learned single Judge of this Court (Senthil Enterprises v. Commercial Tax Officer [1994] 95 STC 78. The said learned single

Judge took into consideration the blasting of rocks - one of the various activities associated with the mining - is itself sufficient to come to the

conclusion that the activity of the assessee-dealers would fall under the term ""mining"" under CSTA. Such an activity of the assessee-dealers may be

constructed as an activity relatable to the mining in a broader or larger sense either under the Mines Act or the MM (R&D) Act and not definitely

under the scheme of the provision relatable to the ""mining"", as adumbrated under the various provisions of CSTA, in a commercial but not in a

technical or scientific sense.

Once the activity of the assessee-dealers in deepening wells and blasting of rocks is found to be not tantamounting to ""mining"" under the

scheme of CSTA, it goes without saying that the assessee-dealers are not entitled to have the ""explosives"" incorporated in their certificate of

registration under the caption ""for use in mining"". It is for the concerned assessing officer to take necessary and appropriate proceedings for

deletion of the incorporation of ""explosives"" in the certificate of registration issued to the assessee-dealers under the caption ""for use in mining"".

This point is therefore answered against the assessee-dealers.

Point No. 2 : The only three ingredients, which constitute the offence u/s 10(d) of CSTA are :

(i) purchase of goods for any of the purposes specified in section 8(3)(b);

(ii) failure to make use of those goods for those purposes; and

(iii) the absence of reasonable excuse for such failure.

It is thus crystal clear that to sustain the imposition of a penalty u/s 10-A, in respect of violation or refraction of the provision u/s 10(d), the

Commercial Tax Officer has to record a finding that the goods purchased for the purpose of section 8(3)(b) were not used for those purposes and

the failure to use those goods for those purposed did not have the support of reasonable excuse. [Vide : State of Mysore v. S. S. Umandi [1969]

24 STC 11 (Mys.)

The superior courts of jurisdiction - apex Court and High Courts - happened to consider the question relatable to the benefit of reasonable

excuse inhering in favour of the assessee-dealers in case of differing interpretations made by the authorities at different stages, either on the question

of law or on facts, relatable to an activity. In this connection, we may refer to some of the precedents, which may serve as guidelines for us to

arrive at a just conclusion in answering the question now focussed for consideration :

(a) In Commercial Taxes Officer Vs. Foreign Import and Export Association, , the assessee was engaged in the business of dyeing raw wool and

was a registered dealer under the Rajasthan Sales Tax Act, 1954 and CSTA. The assessee was permitted to purchase materials used for dyeing

raw wool on ""C"" forms.

(i) It was found by the Commercial Taxes Officer that the materials imported by the assessee on ""C"" forms at the concessional rate of tax had been

used by it not only for processing raw wool belonging to it but also for processing raw wool belonging to other dealers, as well. The question was

whether in using the materials purchased by the assessee for processing the raw wool not only belonging to itself but also to others, the assessee

had misused the ""C"" forms and thereby committed an offence punishable u/s 10(d) of CSTA.

(ii) The Board of Revenue was of the view that there was no misuse of the ""C"" forms by the assessee because not only the goods of the assessee

but goods belonging to other dealers also could be processed by the assessee by using the materials purchased by it on ""C"" forms, provided the

finished goods were meant for sale.

(iii) On an application u/s 15(3A) of the Rajasthan Act for directing the Board of Revenue to state a case, the High Court held as below :

The fact that the two High Courts had taken a view favourable to the assessee on the interpretation of section 8(3)(b) of the Central Act and there

was no decision of the Rajasthan High Court or the Supreme Court on the point showed that there was reasonable excuse for the assessee to

make use of the materials purchased by it on ""C"" forms for processing goods of others on job-basis and it could not be said that the assessee was

not acting in goods faith. Under the circumstances, it could not be said that the assessee had acted deliberately in contravention of law without any

reasonable excuse in using the materials purchased on ""C"" forms for processing the goods belonging to other dealers meant for sale.

An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily

be imposed unless the dealer either acted deliberately in contravention of law or was guilty of conduct contumacious or dishonest, or acted in

conscious disregard of his obligation.

The decision so rendered by Rajasthan High Court was subsequently affirmed by the Supreme Court [Vide : Commercial Taxes Officer Vs.

Foreign Import and Export Association, .

(b) In State of Rajasthan v. Jaipur Udyog Limited [1920] 30 STC 565 (SC) the certificate of registration issued to the respondent-assessee-dealer

described his business as ""wholly manufacture of cement"". The respondent-assessee-dealer purchased from outside the State earth-moving

machinery comprising bull-dozers, dumpers and tipping wagons, paying the preferential rate of tax u/s 8(1) read with section 8(3) of CSTA.

Holding that the respondent-assessee-dealer was not entitled to have the benefit of the preferential rate, the assessing authority imposed a penalty

u/s 10-A for the offence of falsely representing that the goods were covered by the certificate of registration.

(1) One Member of the Board of Revenue took the view that the goods were covered by the certificate of registration and, on a reference, the

High Court held that the goods were chargeable only at the preferential rate u/s 8(3)(b) and that, therefore, penalty was not leviable.

(ii) What the Supreme Court said, on appeal, is reflected below (at page 567) :

Now, the only question is whether the respondent was guilty of falsely representing, when purchasing the goods referred to earlier, that those

goods were covered by the certificate of registration. Unless it is shown that he had made such a false representation, section 10-A is not

attracted. Two Judges of the High Court and one Member of the Board of Revenue have come to the conclusion that the respondent was entitled

to the preferential rate which he claimed. That is the view of the law taken by them. Assuming, without deciding, that the view taken by them is

incorrect, even then it is impossible to say under the circumstance of the case that the respondent was guilty of making any false representation.

The view of the law, which he is contending for is supported by the view taken by two Judges of the High Court and one Member of the Board of

Revenue. Hence, we fail to see how such a view of the law can be taken as false representation.

(iii) So holding, the Supreme Court ultimately held that the penalty u/s 10-A could not be levied.

(iv) The Supreme Court, however, did not find it necessary to decide whether the goods were chargeable at the preferential rate u/s 8(3)(b) of

CSTA.

In the backdrop of the guidelines or principles evolved by the Supreme Court, in the decisions referred to above, we may how endeavour to

give a legal fitment to the facts of the instant cases.

The facts referred to in the process of summation of the cases will unmistakably reveal the at the activity carried on the assess-dealers -

deepening of wells and blasting of rocks - had been construed differently by different assessing authorities, apart from the professionally trained

mind of a honourable Judge of the High Court. In the face of such different interpretations of various authorities, inclusive of a honourable Judge of

the High Court, as relatable to the activity of the dealers concerning mining, to say that the assessee-dealers cannot avail of the benefit of

reasonable excuse, as contemplated u/s 10(d) of CSTA cannot at all be countenanced. To put it positively, such different interpretations relatable

to the activity carried on by the assessee-dealers concerning mining will confer upon them the benefit of reasonable excuse u/s 10(d), so that the

penalty imposed upon them for violation or refraction of the said provision u/s 10-A of CSTA is not at all sustainable in law.

In this view of the matter, though the activity of the assessee-dealers cannot at all be construed to be one relatable to ""mining activity"" under the

scheme of CSTA, the order passed by the successor-Joint Commissioner, in restoring the penalty imposed upon the assessee-dealers for all the

four assessment years, as had been done by the assessing officer deserves to be set aside. This point is answered accordingly.

Point No. 3 : Admittedly the predecessor-Joint Commissioner, though issued notice in suo motu revision proceedings u/s 34 of TNGSTA

calling upon the assessee-dealers why the order of the Appellate Assistant Commissioner should not be set aside by restoring the order of the

assessing officer, however, dropped further proceedings in the matter later. It is also not in dispute that the successor-Joint commissioner under the

facade of rectification of an error, apparent on the face of the record, revised the order of the predecessor-Joint Commissioner u/s 55 of

TNGSTA restoring the imposition of penalty, as had been done by the assessing officer, of course, after setting aside the orders of the Appellate

Assistant Commissioner. So moot a question it is, to consider at this juncture as to whether it is legally permissible for the successor-Joint

Commissioner to do so, as had been done by him, under the garb of invocation of power u/s 55 of TNGSTA.

Section 34 of TNGSTA dealing with special powers of Joint Commissioner of Commercial Taxes reads as under :

34 Special powers of Joint Commissioner of Commercial Taxes - (1) The Joint Commissioner of Commercial taxes may, of his own motion, call

for and examine an order passed or proceeding recorded by the appropriate authority u/s 4-A, section 12, section 12-A, section 14, section 15 or

sub-section (1) or (2) of section 16 or an order passed by the Appellate Deputy Commissioner under sub-section (3) of section 31 or by the

Appellate Deputy Commissioner under sub-section (3) of section 31-A, or by the Deputy Commissioner under sub-section (1) of section 32 or

sub-section (3) of section 33 and if such order or proceeding recorded is prejudicial to the interests 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.

(2) The Joint Commissioner of Commercial Taxes shall not initiate proceedings against any such order or proceedings referred to in sub-section

(1), if -

(a) the time or appeal against that order has not expired; or

(b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the Special Tribunal; or

(c) more than five years have expired after the passing of the order :

Provided that it the order passed or proceeding recorded by the appropriate authority, Appellate Assistant Commissioner or Appellate Deputy

Commissioner or Deputy Commissioner referred to in sub-section (1) involves an issue on which the Special Tribunal has given its decision

adverse to the revenue in any other proceedings, and an appeal to the Supreme Court against the order of the Special Tribunal is pending, the

period of time between the date of the abovesaid order of the Special Tribunal and the date of the order of the Supreme Court shall be excluded in

computing the period referred to in clause (c).

(3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard.

(4) In computing the period referred to in clause (c) of sub-section (2), the time during which the proceedings before the Joint Commissioner of

Commercial Taxes remained stayed under the order of a Civil Court or other competent authority shall be excluded.

(a) From sub-section (1), it is crystal clear that the Joint Commissioner may initiate suo motu revision proceedings, of the orders passed by

appropriate authorities under various sections referred to therein, if the order so passed is prejudicial to the interests of the Revenue and in such

process, he may made such inquiry or cause an inquiry to be made and subject to the provisions of TNGSTA may initiate proceedings to revise,

modify or set aside such order or proceeding and may pass such order thereon as he thinks fit.

(b) Certain limitations in exercise of such a power had been provided under sub-section (2) and within such limits, as had been provided therefore

- about which, no detailed discussion is necessary for the present purpose - and within which such a power has to be exercised.

(c) Sub-section (3) thereof prescribes that an order under the section should not be passed, without the assessee-dealer being given a reasonable

opportunity of being heard, if the order to be passed is to adversely affect him.

(d) Sub-section (4) thereof contains a provision relatable to the exclusion of the period in calculating the period of five years, as contemplated

under sub-section (2), clause (c) thereof.

Reverting back to sub-section (1), we may say that the Joint Commissioner has the necessary and requisite power (1) to revise; (2) to modify

or (3) set aside an order or proceeding of the appropriate authorities passed under the various sections referred to therein and that apart, he may

also pass an order thereon, as he thinks fit.

The expression ""pass such order thereon as he thinks fit"" calls for a contextual and pragmatic interpretation and consideration. It is the

contention of Mr. C. Natarajan, learned Senior Counsel appearing for the assessee-dealers that the expression, ""may pass such order thereon as

he thinks fit"" may take in its fold ""dropping of further proceedings"" also and such an order, if passed, as had been done by the predecessor-Joint

Commissioner is an order, for all practical purposes.

Mr. K. Elango, learned Government Advocate (Taxes) representing the Revenue, would vehemently contend and state that the order dropping

further proceedings, as had been done by the predecessor-Joint Commissioner, is no order at all, in the eye of law, with any consequence, when

especially the order so passed did not even say as to whether in fact an objection had been filed or not by the assessee-dealers, leave alone a

decision rendered on consideration of the objections.

Such a submission of learned Government Advocate (taxes) representing the Revenue was countered by Mr. C. Natarajan, learned Senior

Counsel appearing for the assessee-dealers by stating that if the order passed by the predecessor-Joint Commissioner in dropping proceedings

and to be construed as no order at all, how could it be said that such an order suffers from serious infirmity of an error apparent on the fact of it, so

that the same could be rectified by resorting to the provisions of section 55 of TNGSTA. Beyond such a poser, he would also submit that in such

an eventuality, the proper thing, which the successor-Joint Commissioner could have done, was to ignore the order of the predecessor-Joint

Commissioner and resort to suo motu revision proceedings afresh u/s 34 of TNGST, by issue of a show cause notice to the assessee-dealers

calling for objections and ultimately passing an order thereon. That sort of an order had admittedly not been passed by the successor-Joint

Commissioner and the order so passed by him is definitely one u/s 55 of TNGSTA, in such circumstances. He would further submit that a mistake,

apparent on the face of the record, must be an obvious and patent mistake and not something, which can be established by a long-drawn-out

process of reasoning on points, on which there may be presumably two opinions and therefore it is, he would say, there is no apparent mistake on

record requiring to be corrected by the successor-Joint Commissioner, by resorting to the provisions of section 55 of TNGSTA.

Such rival submissions may now fall for consideration in the arena of discussion, in the light of precedents emerging from the apex Court and

the High Courts.

(a) In M. Ramaswamy Pillai Vs. The State of Madras, an assessing authority in its notice proposing to add a certain sum to the turnover returned

by the assessee, called upon the assessee to show cause why a penalty should not be levied; but in the final assessment order, the assessing

authority failed to make any observation on penalty. The question was whether the Deputy Commissioner, in exercise his powers u/s 32 of

TNGSTA, had jurisdiction to make an order levying penalty on the assessee.

A Division Bench of this Court held that it was a case where it should be deemed that the assessing authority, in view of the objections filed by the

assessee, considered that no penalty was called for. It is not necessary to attract section 32(1) that there should always be an order expressly

passed. The word ""passed"" in the section postulates an order made; but circumstances may show that an order, though not expressly passed, is

impliedly passed. If there is an order passed within the meaning of section 32(1), then the Deputy Commissioner has the power to revise the order

and levy a penalty on the assessee.

This decision is squarely applicable to the facts of the instant cases. The predecessor-Joint Commissioner, as already stated, simply dropped

the proceedings. No doubt, the said order dropping further proceedings does not at all indicate, on its face, the rationale or reasoning for such an

order. This apart, nothing is traceable to the said order as to whether any objections, if at all, had filed by the assessee-dealers. But, we are able to

discern from the objections filed by the assessee-dealers to the subsequent show cause notice issued u/s 55 by successor-Joint Commissioner that

the assessee-dealers, in fact, had filed objections to the earlier show cause notice issued u/s 34 of TNGSTA by the predecessor-Joint

Commissioner. In such state of circumstances, applying the rational, as had been provided in the case of M. Ramaswamy Pillai [1968] 22 STC

224 by a Division Bench of this Court, the order passed by the predecessor-Joint Commissioner dropping proceedings must be construed to be

an order u/s 34 of TNGSTA.

Once it is an order passed u/s 34 thereof by the predecessor-Joint Commissioner, the sentinel of the department, it must be construed that a

finality had been attached to such an order. If it is suffering from an infirmity of an error apparent on the face of it, in which eventuality alone, such

an order could be rectified either by the predecessor-Joint Commissioner or by the successor-Joint Commissioner, by resorting to the provisions

of section 55 of TNGSTA and not until then.

The further question that falls for consideration is as to whether the order of the predecessor-joint Commissioner dropping proceedings could

be construed to be suffering from an error, apparent on the fact of it calling for rectification u/s 55 of TNGSTA, as had been resorted to by the

successor-Joint Commissioner.

In T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay Vs. Volkart Brothers, Bombay, the original assessments on the

respondent, a firm duly registered under the Income Tax Acts, were made on the slab rates prescribed under the respective Finance Acts

applicable to registered firms. In the individual assessments of the partners of the firm their respective shares were included and tax was assessed

at the maximum rate since the partners were assessed as non-residents.

(i) Thereafter, initiating rectification proceedings u/s 154 of the Income Tax Act, 1961, on the ground that there was a mistake apparent from the

record inasmuch as the firm had not been charged at the maximum rate of tax u/s 17(1) of the Income Tax Act, 1922, the Income Tax Officer

purported to rectify the assessments by applying the provisions of that section.

(ii) The respondent firm and its partners applied to the High Court under article 226 of the Constitution and the High Court held that the original

assessments were prima facie in accordance with law and at any rate there was no obvious or patent mistake in those orders of assessment and

therefore, the officer was incompetent to pass the orders of rectification.

(iii) On appeal to the Supreme Court, it was held,

(i) that the question whether section 17(1) of the Act of 1922 was applicable to the case of the respondent-firm was not free from doubt, and it

was not open to the Income Tax Officer to go in to the true scope of the provisions of the Act in a rectification proceeding u/s 154 of the Income

Tax Act, 1961; the officer was wrong in holding that there was a mistake apparent from the record of assessments of the firm.

(ii) That, however, the High Court was not justified in going into the question whether the original assessments were in accordance with the law.

(b) In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, , the Supreme Court happened to consider the question, among

other questions, relatable to the distinction between ""a mere erroneous decision"" and ""a decision, which could be characterised as vitiated by error

apparent"". What the Supreme Court said in respect thereto is getting reflected in paragraph 11 (at page 1377) and the relevant portion of the said

paragraph reads as under :

....There is a distinction which is real though it might not always be capable of exposition, between a mere erroneous decision and a decision

which could be characterised as vitiated by ''error apparent''. A review is by no means an appeal in disguise whereby an erroneous decision is

reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference

exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say

here is a substantial point of law which states once in the face, and there could be reasonably be no two opinions entertained about it, a clear case

of error apparent on the face of the record would be made out.

(c) In Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, , the Supreme Court also happened to consider the question as to what is an

error apparent on the face of the record means. What the Supreme Court said in that connection is getting reflected at the relevant portion of page

217 of STC paragraph 9 (at page 678), which reads as under :

.....we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more

views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the court

in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of

the record.

The rationale or reasoning, as projected by the Supreme Court, in the cases referred to above, if applied to the factual matrix of the instant

cases, we rather feel, cocksure it is, that the orders passed dropping further proceedings by the predecessor-Joint Commissioner u/s 34 of

TNGSTA cannot at all be stated to be suffering from the infirmity of an error, apparent on the face of it, calling for rectification u/s 55 thereof, as

had been resorted to by the successor-Joint Commissioner.

As to whether the activity of the assessee-dealers would tantamount to mining or not is a debatable question, as could be seen from our

discussion under point No. 1. Such being the case, to say that there is an apparent error, on the face of the order of the predecessor-Joint

Commissioner dropping out further proceedings by the successor-Joint Commissioner, so as to invoke the power u/s 55 of TNGST Act cannot at

all be countenanced. This point is answered accordingly.

In view of our findings on point Nos. 2 and 3, it goes without saying that the orders of the successor-Joint Commissioner in setting aside the

Appellate Assistant Commissioner and restoring the order of the assessing officer imposing penalty upon the assessee-dealers cannot at all be

sustained.

In fine, all these appeals are allowed; the impugned orders of the successor-Joint Commissioner and the assessing officer as well are set aside,

No costs.

Appeals allowed.