Case: Board Of Revenue, Madras Vs. M/S. Raj Brothers Agencies Etc

2. The facts of the case lie within a narrow compass. The respondent-assessee was assessed to sales tax during the assessment years 1960-61 and 1961-62. Aggrieved by the orders of the assessing authorities, he went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed his appeals. Thereafter, he filed second appeals to the Sales Tax Appellate Tribunal. Madras. Those appeals were dismissed as having been time-barred. After the Tribunal dismissed the appeals the assesses moved the Board of Revenue under Section 34 (1) to revise the assessment orders. The Board came to the conclusion that it had no jurisdiction to entertain those petitions. The High Court, in the writ petitions filed held that the Board had jurisdiction to entertain those appeals and consequently issued a writ of mandamus to the Board to entertain the revision petitions and consider them on merits. It is against that decision the State of Tamil Nadu has come up in appeal.

Reasoning:
To put it differently the State had prayed for and obtained a particular interpretation of S. 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the States conduct in taking inconsistent positionsThis contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) ofthe Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants caseThis question does present some difficulty. But in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court. As far back as 1963 the scope of Section 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of Madras, (1963) 14 STC 724 (Mad)  . Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under Section 34.The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under Section 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contention and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean the subject of an "effective appeal" High Court took into consideration the mischief that would otherwise arise namely, all that an assesses, who wants to stifle the Boards suo motu power of revision, has to do is to file ad appeal and get it dismissed. It was because of that difficulty the High Court in Erode Yarn Stores case, (1963) 14 STC 724 (Mad)   came to the conclusion that expression the order which has been the subject of an appeal as meaning "subject of an effective appeal."In arriving at that decision, the High Court did take into consideration the decision of this Court in Mela Ram and Sons v. The Commr. of, Punjab, 1956 SCR 166 (AIR 1956 SC 367)   wherein this Court ruled that an appeal presented out of time is an appeal and an order dismissing it asThis contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessees appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our attention to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under Section 20 (1) ofthe Andhra Pradesh General Sales Tax Act, 1957, which provision is similar to S. 34 of the Act. Those decisions lend no assistance to the appellants