Thomas John and Co and Another vs Dy. Commissioner A.I.T. and S.T. and Another

K.P. Radhakrishna Menon, J.—A common question arises for consideration in these Original Petitions and therefore they are disposed of by a common judgment. The facts relevant for consideration of the question are practically identical although the petitioners are different. For the sake of convenience, the facts stated in O. P. 6269 of 1989 are recapitulated here. The entire tax due under the order of assessment (Ext. PI) was paid by the petitioner because the order of assessment was beyond challenge in view of the decision of this court in Kuttirayin & Co. v. State of Kerala ( (1976) 38 STC 282). This decision however, was apparently overruled by the Supreme Court as is seen from the ruling in State of Orissa v. Titaghur Paper Mills Co. Ltd. ( (1985) 60 STC 213).

Having come to know of this pronouncement of the apex court the petitioner filed an application u/s 35 of the Kerala General Sales Tax Act (for short The Act) before the Deputy Commissioner, Agricultural Income Tax & Sales Tax. Alleppey seeking revision of the assessment order. The revisional authority relying on clause (c) of sub-section 2 of Section 35 of The Act dismissed the revision. That the order under challenge Ext. P1 was passed on 25-1-1984, is beyond challenge (the order of assessment which is the subject matter of O.P. 6085 of 1989 was passed on 15-11-1983). The revision u/s 35 of The Act was filed on 6-10-1987; the petitioner in O.P. 6085/89 filed revision on 6-10-1987. It is therefore clear that the revisions were filed within four years from the date of the passing of the orders of assessment. The revisional authority had ample time to consider and dispose of the revisions before the expiry of four years after the passing of the orders sought to be revised. Yet he disposed of the petitions after the expiry of the period stipulated under clause (C) of sub-section 2 of Section 35 of The Act. May be that he had not been appraised of the fact that the revisions had been filed within four years of the passing of the orders sought to be revised. Whatever that be, the orders under challenge, in my view, definitely prejudice the petitioners. It is relevant in this context to note the much acclaimed principle that an act of the court shall not prejudice any patty. This salient principle, to my mind, shall be extended to proceedings before quasi-judicial authorities. The first respondent who had entertained the applications which admittedly were filed within the time limit ought not to have dismissed the petitions relying on clause (C) of sub-section 2 of Section 35. He should have disposed of the revisions on merits. Considering an identical question a Division Bench of the Madras High Court in State of Tamil Nadu v. Mahalakshmi Textile Mills Ltd. (1978) 41 S.T.C. 286) has observed thus:-

...The only defence was that the suo motu power could not be exercised on an application by the assessee. As this objection was found to be without merit, this court directed the Deputy Commissioner to go into the matter. Therefore, it is not now open to the State to contend that the time-limit prescribed u/s 32 having already elapased, there is no scope for exercising jurisdiction u/s 32. The Deputy Commissioner cannot sleep over an application and rely on the expiry of the time-limit which arose out of his negligence.

With respect, I agree with this view.

For the reasons stated above Ext. P4 in O. P. 6269/89 and Ext P3 in O. P. 6085/89 are quashed. The first respondent is directed to take the revisions on to its file and dispose of the same after giving the petitioners an opportunity of being heard in accordance with law.

The C. Ps are disposed of as above. No costs.