Andhra HC (Pre-Telangana)
Kandaswamy Gounder And Company vs Commissioner Of Commercial Taxes on 3 March, 1988
Equivalent citations: [1988]71STC340(AP)
ORDER G. Ramanujulu Naidu, J.
1. These two appeals are preferred under section 23(1) of the Andhra Pradesh General Sales Tax Act, 1057, assailing the common order dated 10th November, 1986 passed by the Commissioner of Commercial Taxes, Hyderabad, setting aside the common order dated 23rd August, 1982 passed by the Appellate Deputy Commissioner (Commercial Taxes), Kurnool, in purported exercise of the powers vested in him under section 20 of the Act.
2. The appellant executed certain works for the South Central Railways. On the turnover pertaining to supply of stone-ballast, for the assessment years 1979-80 and 1980-81, he sought exemption from payment of tax. His claim was rejected by the Commercial Tax Officer (Intelligence), Kurnool. He thereupon preferred appeals before the Appellate Deputy Commissioner (Cornmercial Taxes), Kurnool. Accepting the appellant's claims, the appeals were allowed by the Appellate Deputy Commissioner (Commercial Taxes), Kurnool, by his common order dated 23rd August, 1982. As already stated, the Commissioner, Commercial Taxes, Hyderabad, by his impugned common order dated 10th November, 1986 set aside the order of the Appellate Deputy Commissioner (Commercial Taxes), Kurnool.
3. It is urged by Sri S. Dasaratharama Reddi, the learned counsel for the appellant, that during the relevant time, the Commissioner, Commercial Taxes, had no jurisdiction to revise the orders of the Appellate Deputy Commissioner (Commercial Taxes), Kurnool, under section 20 of the Act. Section 20 of the Andhra Pradesh General Sales Tax Act may be usefully extracted for the purpose of appreciating the contention put forward, and it reads thus :
"20. Revision by Commissioner of Commercial Taxes and other prescribed authorities. - (1) The Commissioner of Commercial Taxes may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section, for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit.
(2) Powers of the nature referred to in sub-section (1) may also be exercised by the Joint Commissioner, the Deputy Commissioner and the Commercial Tax Officer, in the case of orders passed or proceedings recorded by authorities, officers or persons subordinate to them.
(2-A) The power under sub-section (1) or sub-section (2) shall not be exercised by the authority specified therein in respect of any issue or question, which is the subject-matter of an appeal before, or which was decided on appeal by, the Appellate Tribunal under section 21.
(3) ..........
(4) ..........
(5) ..........
(6) ........."
4. For the purpose of exercise of powers conferred under section 20 of the Act, rule 44-A of the Rules framed under the Act, enacted at the material time, ran thus :
"44-A. For the purpose of the exercise of the powers of the nature referred to in sub-section (1) of section 20 the authorities specified in column (1) of the Table below shall be deemed to be subordinate to the authority specified in the corresponding entry in column (2) thereof.
Table
(1) (2)
I. Joint Commissioners, Deputy Commissioners, Commissioner of
Assistant Commissioners, Commercial Tax Commercial Taxes.
Officers, Deputy Commercial Tax Officers
and Assistant Commercial Tax Officers.
2. Appellate Deputy Commissioners of Joint Commissioner
Commercial Taxes. (Commercial Taxes),
Legal.
3. Assistant Commissioners, Commercial Tax Deputy Commissioner
Officers, Deputy Commercial Tax Officers (Commercial Taxes)
and Assistant Commercial Tax Officers. of the division
concerned.
4. Deputy Commercial Tax Officers and Commercial Tax
Assistant Commercial Tax Officers. Officers of the area
concerned."
5. It may, therefore, be noticed that during the material time, any orders passed by the Appellate Deputy Commissioners (Commercial Taxes) could only be revised by the Joint Commissioner (Commercial Taxes), Legal, under section 20(1) of the Act as the Appellate Deputy Commissioners (Commercial Taxes) were deemed to be subordinate only to the Joint Commissioner (Commercial Taxes), Legal, under section 20(1) of the Act.
6. In fact, realising the anomaly, rule 44-A of the Rules was later amended by G.O. Ms. No. 1445, Revenue (S), dated 6th November, 1986. Under the amended rule, the Deputy Commissioners (Commercial Taxes) including the Appellate Deputy Commissioners were made subordinate to the Commissioner of Commercial Taxes, for the purpose of exercise of powers conferred under section 20 of the Act.
7. The learned Government Pleader, however, submits that, at the time when the impugned order was passed by the Commissioner, he was holding additional charge of the post of the Joint Commissioner (Commercial Taxes), Legal, and that the Commissioner must be, therefore, deemed to have exercised the powers of the Joint Commissioner (Commercial Taxes), Legal. This submission is untenable. In the cause-title of the impugned order, it is stated that the order was passed by the Commissioner (Commercial Taxes), Hyderabad. The order was also signed by him as such. Nowhere in the impugned order it is stated that the order was passed by him in purported exercise of the powers conferred upon the Joint Commissioner (Commercial Taxes), Legal. The impugned order is, therefore, liable to be quashed.
8. We must also observe that the Commissioner of Commercial Taxes is wrong in holding that no contracts were produced by the appellant before the Appellate Deputy Commissioner. In the order passed by the Appellate Deputy Commissioner, it is stated that the authorised representative of the appellant produced before him copies of the agreement in question. The finding recorded by the Commissioner to the contrary is liable to be set aside.
9. We accordingly set aside the impugned order, and allow these appeals. No costs.
10. Advocate's fee Rs. 200 in each.
11. Appeals allowed.