LexSTATE OF KERALA versus SHRI M. APPUKUTTY
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l S.C.R. SUPREME COURT REPORTS 563 petition is without force and is dismissed with costs. BY CoFRT :-In view of the majority opinion the \Vrit Petition is allowed with costs. STATE OFKERALA v. SHRI M. APPUKUTTY (]. L. KAPUR and J.C. SHAH, JJ.) Sale8 Tax-Escaped turno11er-[.'8ue of notice by lkputy Oommissioner-Jurisdiction_:_Rules, if ultra vires-Madras General Sale8 Tax Act, 19.19 (Madras lX of 1939), ss. 9 (1), 9(2). 12 (2), 19 (1), 19 (2) (!)-:Madras General SaleR Tax Rules, rr. 17 (1), 17A (JA), 17 (3A). The Deputy Commercial Tax Officer imposed sales tax under the Madras General Sales Tax Act, 1939, on the respon· dent for the assessment year and the appeal taken against the assessment order was dismissed. Thereafter the Deputy Commissioner of Commercial Taxes issued a notice proposing to determine the escaped turnover for the period of asse<.sment and in pursuance of this notice he determined the revised turn- over. On the dismissal of the appeal filed by the respondent before the Sales Tax Appellate Tribunal he filed a revMon petition before the High Court. The High Court allowed the revision petition on the ground that the notice by the Deputy Commi.,ioner of Commercial Taxes was issued without juris- diction. The State appealed to the Supreme Court with special leave. The main questions in the appeal were whether the notice was issued without jurisdiction and whether the rules under which the notice was issued were ultra vires the Act. Held, that the power of the Deputy Commissioner to assess escaped turnover under r. 17 (3A) framed under s. 19 of the Act docs not arise out of the revisional jurisdiction exercised under s. 12 (2) of the Act. The Deputy Commissioner fa there- fore not bound to restrict himself to the examination of the 1962 Roop Chand v. State of Punjab Kapur, J. 1962 Octab1r, 11. 1962 State of Ktrala v. Shr i M. Appukutty Kapur, J. 564 SUPREME COURT REPORTS [1963] SUPP. evidence already on record. Section 9 does not deal ·with escaped turnover but is a provision fm determination of the turnol'er of a dealer in the firnt instance. Rule 17 deals with a separate and independent jurisdiction in regard to determining and taxing escaped turnovers. There is no conflict bet\veen s. 12 (2) and rr. 17 (I), 17 (IA) and 17 (3A). Therefore the notice was not issued without jurisdiction, nor was r. 17 (I) ultra vires the substantive provisions of the Act. King Emperor v. 8i7math Banerji, (1945) L. R. 72 I. A. 241, followed. State of Madras v. Lonis Dreyfus & On. LU., (1955) 6 S. T. C. 318, distinguished. Crvu, APPELLATE JuRismoTION : Civil Appeal No. 621 of 1961. Appeal by special leave from the judgment and order dated September 25, 1958, of the Kerala High Court in Tax Revision Case No. 11of1957. S. 'I'. Demi and V. A. 8. .Mithammed, for the appellant. 'I.'. V. R. 'I'ataclwri, for the respondent. 1962. October 11. TheJudgment of the Court was delivered by KAPUR, J.-In this appeal by special leave against the judgment and order of the High Court of Kerala the appellant is the State of Kerala and the respondent is the assessee. The appeal arises out of proceedings under the Madras General Sales Tax Act, 1939, (Madras Act No. IX of 1939) read with the rules made under s. 19 of that Act. In this judg- ment the former will be referred to as the Act and the latter as the rules. The area of Kozhikode was originally within the State of Madras, but by the· States Reorganisation Act was transferred to the State of Kerala. The Madras General Sales Tax Act, 4mvever, continued to apply. 7 • I S.C.R. SUPREME COURT REPORTS 565 The assessment period for the purposes of the turnover in dispute is 1952-53. By an order dated March 27, 1954 the Deputy Commercial Tax Officer, Kozhikode, imposed sales tax on the respondent on a net turnover of Rs. 12,56,178-14-0 and the appeal taken against that order to the Commercial Tax Officer was dismissed. On March 15, 1956 a notice was issued by the Deputy Commissioner of Commer- cial Taxes against the assessee proposing to determine the escaped turnover for the period of assessment. By an order dated March 31, 1956, the Deputy Com- missioner determined the revised turnover. An appeal was taken against that order to the Sales Tax Appel- late Tribunal, Trivandrum, but that appeal was dismissed on March 23, 1957. Against that order a revision was taken to the Kerala High Court and
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