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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 Commercial Taxes against the assessee proposing to determine the escaped turnover for the period of assessment. By an order dated March 31, 1956, the Deputy Commissioner determined the revised turnover. An appeal was taken against that order to the Sales Tax Appellate Tribunal, Trivandrum, but that appeal was dismissed on March 23, 1957. Against that order a revision was taken to the Kerala High Court and by its judgment dated September 25, 1958 the High Court set aside the order of the Deputy Commissioner on the ground that the notice issued by the Deputy Commissioner of Commercial Taxes was without jurisdiction and the order of the appellate tribunal was therefore erroneous. Another question which had been raised before the High Court that the rule under which the Deputy Commissioner purported to act was ultra vires the Act was not decided because of the decision on the first question i.e. of,jurisdiction. Against that judgment and order the State of Kerala has come in appeal by special leave to this court.

We shall first take up the question of jurisdiction raised by the appellant. The tribunal held that the powers conferred on the Deputy Commissioner of Commercial Taxes under s. 12(2) and r. 17(3A) are distinct powers and action taken under r. 17(3A) was not without jurisdiction. This finding was reversed by the High Court. Now s. 12(2) confers on the Deputy Commissioner the power suo motu or on an application to call for and examine the record of the proceedings of any officer subordinate to the Deputy Commissioner for the purpose of satisfying himself as to the legality or propriety of such order and he can pass such order with respect thereto as he thinks fit. The respondent's argument was, and that argument was accepted by the High Court, that this provision contains the totality of the powers of the Deputy Commissioner and the power to assess escaped turnover is merely incidental to the power of revision and may be exercised only when revisional jurisdic- tion under s. 12(2) is invoked under that section and the record is sent for suo motu or on application and the legality or propriety of the order made by the Subordinate Officer is scrutinized. Therefore the Deputy Commissioner was not in the absence of any substantive proceeding for exercise of revisional powers competent to assess escaped turnover. But the power to assess escaped turnover does not arise out of the revisional jurisdiction. In exercising revisional jurisdiction the Deputy Commissioner would be restricted to the examination of the record for determining whether the order of assessment was according to law. Rule 17 confers power to assess escaped turnover which may normally be exercised on matters dehors the record of assessment proceedings before the Deputy Commercial Tax Officer. It is true that the substantive provisions of the Act do not expressly deal with the power and procedure for assessment of escaped turnover, the legislature has left it to be dealt with by statutory rules to be framed under s. 19, and r. 17 has been framed thereunder. Rule 17(1) and (3A) ex facie Properly fall under s. 19(2)(f). In any event as was said by the Privy Council in King Emperor v. Sibnath Banerji(1) the rule making power is conferred by sub-s. (1) of that section and the function of subs. (2) is merely illustrative and the rules which are referred to in sub-s. 2 are authorised by and made under sub-s. 1. The provisions of sub-s. 2 arc not restrictive of sub-s. (1) as expressly stated in the words "without prejudice to the generality of the foregoing power with which sub-s. (2) begins and which words arc similar to the words of sub-s. (2) of s. 2 of the Defence of India Act which the Privy Council was considering. Now sub-s. 1 of s. 19 of the Act provides that "the State Government may make rules to carry out the purposes of this Act" and the long title of the Act is an Act to, provide for the levy of general tax on the sale of goods in the State of Madras. Therefore in our opinion r. 17 and the various clauses thereof made under s. 19 are not beyond the rule making power of the State Government as contained in s. 19.

no order of the appellate authority or of revisional authority as contemplated in s. 12(2) of the Act and in those cases the appellate authority or the revising authority as the case may be has, under sub-r.(3A), the same power as the assessing authority had under sub-r. 1 of r.

17. In the present case after an appeal to the Commercial Tax Officer there was no further proceeding and therefore the Deputy Commissioner who is the revising authority acted under r. 17 (3A) and issued a notice which, according to that sub-rule he had power to issue and then determined the escaped turnover. We have already held that r. 17 is a valid rule under s. 19 of the Act. Sub-rule 3A of r. 17 on its plain construction confers jurisdiction on the revising authority to issue the notice which it did issue and in our opinion, and we say, so with respect, the judgment of the High Court is, to that extent, erroneous and it cannot be said that the notice was without jurisdiction. Therefore the impugned order was not incorrect.

The respondent then argued that r. 17 is ultra vires of the provisions of the Act and he put his argument like this; that the power to assess is given to the assessing authority under s. 9(1) & (2) which has been quoted above. The assessing authority is defined in S. 2(a-2) to mean any person authorised by the State to make any assessment under this Act. Therefore the assessment of escaped turnover can only be done, if at all, by an "assessing authority" and not by a revising authority as he has not been authorised by the State Government. The answer to this is in s. 2B. That section authorises the State Government to appoint as many Deputy Commissioners of Commercial Taxes as it thinks fit for the purpose of performing the functions conferred on them under the Act add such officers shall perform their functions within such local limit as the State Government in this behalf may assign to them. Rule 17 confers on the Deputy Commissioners the power to determine and tax escaped turnovers in cases where revisions have been taken to them (sub-r. IA) and also where revisions have not been taken to them (sub-r. 3A). Provisions of s. 9(1) and (2) therefore are no bar to the exercise of power of assessing escaped turnovers. Moreover s. 9 does not deal with escaped turnovers but is a provision for the determination of the turnover of a dealer in the first instance nor can it be said that r. 17 is in conflict with s. 12(2). That section deals with another state of affairs and another jurisdiction i.e. where the Deputy Commissioner suo motu or on an application made calls for the record and determines the legality or propriety of an order made by one of the subordinate officers. It cannot be said in view of r. 17 that the power of revision by the Deputy Commissioners is limited to powers under s. 12(2). Rule 17 deals with a separate and independent jurisdiction in regard to the determining and taxing escaped turnovers. The provisions of s. 12(2) are in no way in conflict with the powers conferred under r. 17(1), 17(IA) and 17(3A).