IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17.04.2008 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA Writ Appeal No.3985 of 2003 M/s.Sumangala Steels Ltd., 45, Chamiers Road, Chennai 600 028. Appellant v. 1. The Chairman, Tamilnadu Sales Tax Appellate Tribunal, Chennai. 2. The Appellate Assistant Commissioner (CT-IV), Chennai. 3. The Deputy Commercial Tax Officer, Mandaveli Assessment Circle, Chennai. Respondents Writ appeal filed under clause 15 of the Letters Patent against the order dated 23.10.2003 made by a learned single Judge of this Court in writ petition No.38269 of 2002 petition filed under article 226 of the constitution of India to issue a Writ of Certiorarified Mandamus to call for the records of the 1st Respondent herein in T.A.98/02 dated 6.8.2002 and quash the same as illegal unlawful and unconstitutional and direct the 2nd respondent herein to take the appeal on file and dispose it of on merits. For appellant : Mr.V.Sundareswaran For respondents : Mr.Haja Nazeeruddin Special Government Pleader JUDGMENT K.RAVIRAJA PANDIAN, J. The appeal is filed by the assessee questioning the correctness of the order dated 23.10.2003 made in writ petition No.38269 of 2002 since reported in 137 STC 517. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant is a dealer in iron and steel and an assessee on the file of the third respondent. For the assessment year 1997- 98 the appellant assessee filed return reporting total and taxable turnover of Rs.17,95,64,901/- and Rs.4,72,07,862/- respectively under the Central Sales Tax Act. On the basis of the return, assessment order was passed on 24.03.2002 arriving at the taxable turnover as follows : 1. Interstate sales covered by C form Rs.11,46,763/- at 4% 2. Consignment Sales not covered by Form F Rs.88,25,714/- at 8% 3. Stock transfer to Bangalore branch not by Form F Rs.3,72,35,862/- at 8% --------------------------- Rs.4,72,07,862/- ------------------- 3. After framing of the assessment, as aforesaid, the appellant filed certain Form-F for Rs.3,72,35,714/- pertaining to the turnover of stock transfer to Bangalore branch which turnover was originally charged to tax at 8% in the absence of Form F and requested the assessing officer to rectify the assessment under section 9(2) of Central Sales Tax Act read with section 55 of the Tamilnadu General Sales Tax Act. The assessing officer, after verifying the Form F declaration filed, allowed the claim in toto in respect of the turnover in a sum of Rs.3,72,35,714/-. The said order was made on 31.05.2000 by invoking the provisions of section 9(2) of the CST Act read with section 55 of the TNGST Act. 4. As against that order dated 31.05.2000 the assessee filed an appeal before the first appellate authority, the Appellate Assistant Commissioner, under section 31 of the Act, disputing the levy of tax on consignment sales turnover of Rs.88,25,405/- assessed at 8% in respect of certain sales not covered by form F. The first appellate authority dismissed the appeal on the ground that the assessee could not have any grievance about the order dated 31.05.2000 which granted the total relief sought for by the appellant in respect of the stock transfer turnover of Rs.3,72,35,714/- and dismissed the appeal as not maintainable under section 31 of the TNGST Act. The assesee carried the matter to the Sales Tax Appellate Tribunal on further appeal under section 36 of the Act. The Tribunal by its order dated 06.08.2002 confirmed the order of the first appellate authority. The assessee, not satisfied with the order of the Tribunal, filed writ petition before this Court. The learned single Judge, by reason of the order impugned in this writ appeal, dismissed the writ petition. The correctness of the same is now assailed before us. https://hcservices.ecourts.gov.in/hcservices/ 5. Mr.Sundareswaran, learned counsel appearing for the appellant submitted that all the authorities below and the learned Judge have totally erred in coming to the conclusion that the order dated 31.05.2000 is not an appealable order. Once the original order of assessment is revised, the earlier order passed automatically merges with the subsequent order. Hence, the subsequent order can only be regarded as an order of assessment, which is very well appealable under sections 9(2) of the CST Act read with section 31 of the TNGST Act. However, learned Government Pleader appearing for the respondents argued for sustaining the order impugned in this appeal. 6. Heard the learned counsel on either side and perused the materials available on record. 7. The facts are very clear. The appellant was on 24.03.2000 originally assessed for the assessment year 1997-98 on a taxable turnover of Rs.4,72,07,862/- as follows : 1. Interstate sales covered by C form Rs.11,46,763/- at 4% 2. Consignment Sales not covered by Form F Rs.88,25,714/- at 8% 3. Stock transfer to Bangalore branch not by Form F Rs.3,72,35,862/- at 8% --------------------------- Rs.4,72,07,862/- -------------------- 8. By order dated 31.05.2000 accepting the Form-F filed by the assessee for the third turnover stated above, i.e., stock transfer of Bangalore Branch, the assessing officer deleted that portion of the turnover from the liability. The earlier order dated 24.03.2000 was rectified to that effect. In respect of the other turnover, i.e., interstate sales covered by 'C' form Rs.11,46,763/- at 4% and consignment Sales not covered by Form F Rs.88,25,714/- taxable at 8%,there was no change. The entire relief sought for by the appellant in respect of the third turnover, i.e., stock transfer to Bangalore branch has been totally granted by accepting the Form F produced by the appellant. Thus, the order rectifying the earlier order dated 24.03.2000 is only the rectification order granting the relief as sought for by the assessee. In respect of the rest of the turnover, no dispute was raised by the assessee. The contention of the learned counsel that the order passed under section 55 of the Act granting the relief is an appealable order is not acceptable . 9. Section 55 of the Act read as follows: 55. Power to rectify any error apparent on the face of the record (1) An assessing authority or an appellate or revising authority (including the Appellate Tribunal) may, at any time within five years from the date of any order passed by it rectify any error apparent on the face of the record: PROVIDED that no such rectification which has the effect of enhancing an assessment or any penalty shall be made unless https://hcservices.ecourts.gov.in/hcservices/ such authority has given notice to the dealer and has allowed him a reasonable opportunity of being heard (2) Where such rectification has the effect of reducing an assessment or penalty the assessing authority shall make any refund which may be due to the dealer (3) Where any such rectification has the effect of enhancing an assessment or penalty, the assessing authority shall give the dealer a revised notice of assessment or penalty and thereupon the provision of this Act and the rules made thereunder shall apply as if such notice had been given in the first instance. (3A) The powers under sub-section (1) may be exercised by the assessing authorities even though the original order of assessment, if any, passed in the matter has been the subject-matter of an appeal or revision. (4) The provisions of this Act relating to appeal and revision shall apply to a order of rectification made under this section as they apply to the order in respect of which such order of rectification has been made. 10. Learned counsel placed reliance on sub clause (4) which provides that the provisions of TNGST Act relating to the appeal and revision shall apply to an order of rectification made under section 55 as they apply to the order passed in respect of which such order of rectification has been made. 11. As already stated, the appellant cannot have any grievance about the order dated 31.05.2000 which granted the relief as sought for by it. In respect of the consignment sales turnover, no relief has been sought for by filing necessary declaration form as required under the TNGST Act. Clause 4 of Section 55 of the TNGST Act could be taken in aid only when an adverse order is passed in an application taken out under section 55, which is subject to the revisional jurisdiction by the Deputy Commissioner under section 33 of the TNGST Act, which gives a revisional remedy against an order or proceedings recorded under the Act for which an appeal has not been provided for in section 31 or Section 31A of the TNGST Act. 12. The appealability of an order can also be tested from the angle of the appeal provision. Section 31 of TNGST Act provides for appeal to the appellate Assistant Commissioner which states that any person objecting to an order passed by the appropriate authority under section 4A, sub section 3 of section 10, section 12, section 12A, section 14, section 15, sub-sections 1 and 2 of section 16, section 18, sub section 2 of section 22, section 23 or section 27, other than an order passed by the Assistant Commissioner (Assessment) may, within a period of 30 days from the date on which the order was served on him in the manner prescribed, appeal against such an order to the Appellate Assistant Commissioner having jurisdiction. Section 31A provides for an Appeal to the Appellate Deputy Commissioner which states that Any person objecting to an order passed by the Assistant Commissioner (Assessment) under section 4A, sub section 3 of section 10, section 12, section 12A, section 14, section 15, sub-sections (1) and (2) https://hcservices.ecourts.gov.in/hcservices/ of section 16, section 18, sub-section (2) of section 22, section 23 or section 27 may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Deputy Commissioner having jurisdiction. The proviso appended is not relevant to the point in issue in this case. 13. A rectification order under section 55 of the TNGST Act has not been stated in the appeal provisions which specify the order passed under various provisions as appealable one. 14. Learned counsel placed reliance on the decision in the case of Kundan Lal Srikishan v. Commissioner of Sales Tax, U.P, 65 STC 62 to contend that because of the order dated 31.05.2000 revising the earlier assessment order dated 24.03.2000, the earlier assessment order dated 24.03.2000 has got re-opened and did not have an independent existence thereafter and the only order available is the order dated 31.05.2000 and that order is an appealable order. 15. We are not able to approve the contention of the appellant's counsel that the decision of the Supreme Court in Kundan Lal's case supports the case of the appellant. That was a case in which the appellant-assessee was assessed on its turnover under the UP Sales Tax Act, 1948 on February 07,1949 and thereafter on January 8, 1980 the Sales Tax Officer issued notice under section 21 of the said Act reopening the assessment on the ground that mandi cess and arhat (commission) has escaped assessment. On January 18, 1980, the Sales Tax Officer passed an order holding that on examination it was found that the appellant has already included the arhat and mandi cess amount in the turnover and he had already been assessed and therefore, the appellant was not liable to pay any more tax under the said Act. In 1982, the appellant realised that it was not liable to pay sales tax on purchase made on behalf of Ex.-UP principals as such purchases had occasioned inter-state movement and were, therefore, exempt, and filed an application under section 22 on November 4, 1982 for rectification of the assessment. This application was rejected on the ground that it was not filed within three years against the original order dated February 7, 1979. The Tribunal, on appeal, held that the application was within time since the original order dated 07.02.1979 had ceased to exist on the reopening of the assessment under section 21. The final order was passed on 08.01.1980. The rectification application was filed within 3 years. On those facts, the Supreme Court held as follows : "Once the reassessment notice was issued under section 21 of the U.P. Sales Tax Act the original order of assessment got reopened and thereafter any order under section 21 alone would be the order of assessment." 16. Section 21 of the UP Sales Act is the pari materia provision to section 16 of the TNGST Act, which provides for reopening of the assessment on the ground of escapement of turnover. If the original order dated 24.03.2000 was subjected to https://hcservices.ecourts.gov.in/hcservices/ revision under section 16, then, the order passed under section 16 alone be the order of assessment on the principle of merger. In the case on hand, the original order dated 23.04.2000 had never been re-opened under section 16 on the ground of escapement of turnover for assessment. Hence, the cited judgment is not applicable to the facts of the case. 17. It is pertinent to refer to the decision of a Division Bench of the Madras High Court in the case of The India Cements Ltd. v. Deputy Commissioner of Commercial Taxes, Madurai, 30 STC 516 wherein it is held as follows : "But we do not agree with the learned counsel for the petitioners that the subject matter of appeal before the Appellate Assistant Commissioner was the entire turnover including the turnover which was originally assessed. So far as the original turnover assessed is concerned, an appeal lay to the Appellate Assistant Commissioner under section 31 and no appeal having been filed, that order had become final." 18. In view of the reasoning given in the foregoing paragraphs we dismiss this appeal. No costs. The connected miscellaneous petition is consequently dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar mf To 1. The Chairman, Tamilnadu Sales Tax Appellate Tribunal, Chennai. 2. The Appellate Assistant Commissioner (CT-IV), Chennai. 3. The Deputy Commercial Tax Officer, Mandaveli Assessment Circle, Chennai. 1 cc To The Special Government Pleader (Taxes), SR.21710 +1 cc To Mr.V.Sundareswaran, Advocate, SR.22352 WA.No.3985 of 2003 mdr [co] gkg/24.4 https://hcservices.ecourts.gov.in/hcservices/