Decided on January 19,1970



RAMAPRASADA RAO, J. - (1.) THE assessee , Messrs Central camera Company (Private) Limited, dealers in photographic materials at No. 35/4 mount Road, Madras, was subjected to assessment under the Central Sales Tax Act for the assessment year 1960-61. THE assessing officer was the Additional Commercial tax Officer IV, South Madras. When the accounts of the assessee were called for and checked, it was discovered that in the totality, a sum of Rs. 4, 66, 092. 17 was the assessable turnover. THE assessee contended that as these transactions were in the nature of inter-State sales, he was entitled to the concessional rate of tax; but he would not produce before the assessing officer the necessary'c'or'd' forms, as they are popularly characterised. A further opportunity to the dealer, though of course, for a very short time, was not of any avail. Finally, the assessing officer refused to give further time and assessed the turnover in question at the higher rate, ignoring the concessional rate, for the reason that the proper'c'and 'd'forms for a major portion of the assessable turnover were not produced. On appeal before the Appellate Assistant Commissioner, the assessee gave up his claim for a concessional rate of tax on the disputed turnover relating to inter-State sales, which called for the'c' forms, but restricted his claim, in appeal, in respect of the turnover relating to sales, which are to be covered by the'd'forms. This he made specifically clear before the Appellate Assistant Commissioner and this admission is not in dispute either. THE Appellate Assistant Commissioner, solely relying upon the contention raised before him, would not accept the argument that the'd'forms could not be filed in time because of certain practical difficulties, and ultimately dismissed the appeal. On second appeal to the Tribunal, the assessee once again attempted to resurrect the entire claim, apparently taking advantage of the supervening judicial precedents by then rendered by this court and by the Supreme Court; ignoring his earlier stand he began to canvass the legality and propriety of the original assessment order of the assessing authority, which included a turnover of Rs. 2, 32, 456. 22 as referable to non-production of'c'forms. THE Tribunal, in our view rightly, did not agree that the assessee could, in second appeal, reagitate or resurrect a claim given up by him before the appellate Assistant Commissioner and they restricted their discussion to the disputed turnover, the quantum and the rate relating to which were agitated before the Appellate Assistant Commissioner. THEy ultimately found that no adequate opportunity was given to the assessee to satisfy the appellate authority that the turnover considered by the Appellate assistant Commissioner was not assessable at the higher rate and felt that the case ought to be remitted to the revenue for fresh disposal, after giving a reasonable opportunity to the assessee to satisfy the authorities about cause for the non-production in time of'd'forms in respect of the turnover of Rs. 47, 114. 67, which was the only quantum of turnover disputed before the appellate authority and was includible in the taxable turnover. THEy accepted the contention of the learned Advocate for the assessee before them in part that the assessee was entitled as of right, and in the peculiar circumstances of the case, to treat the original order of assessment as illegal, the same having been rendered without an adequate opportunity having been given to the assessee at the time when it was made. This conclusion they arrived at, because they were aware that the assessee restricted his claim and his case and, therefore, the quantum of the disputed turnover, to the sum of Rs. 47, 114. 67 and to no more. It is as against this order of the Tribunal that the present tax case has been filed. Learned counsel for the assessee urges before us that, notwithstanding the concessions made by him before the Appellate Assistant Commissioner, since the Tribunal found that he was entitled to a reasonable opportunity, the entire assessment proceedings are at large and that his claim before them that a sum of Rs. 2, 32, 456. 22 should also be considered as a disputed turnover, ought to have been entertained by them and the remitting order should have included this amount as well. He refers to section 36 of the madras General Sales Tax Act, 1959, in support of his contention. When an assessee voluntarily gives up a portion of his claim before the hierarchy of Tribunals constituted under the enactment for the adjudication of rights as between the assessee and the State, then it creates, as it were, an estoppel , which is far superior to the estoppel that is ordinarily created in a civil dispute. An assessee in a taxing statute is fully aware, or, at any rate, is conscious of the burden which is likely to be imposed on him by reason of the pending proceedings and if, in such a context, he gives up a quantum of the turnover for reasons known to him, then he cannot take advantage of the supervening judicial precedents which might favour him and urge that the still higher hierarchy should hear him on the question whether the turnover voluntarily given up by him also can at all, be brought into the net of taxation. One cannot approbate and reprobate is a well-established principle. Here is a case where an assessee was not prompted by any one excepting himself to give up a portion of the disputed turnover before the appellate authority. In those circumstance we are unable to agree with the contention of the learned cancel for the assessee that section 36 of the Madras General Sales Tax Act, 1959, could be of any assistance to him. Section 36 deals with appeals to the Appellate Tribunal.
(2.) IT is common knowledge that an appeal is a creature of statute and if the appellate Tribunal hears an appeal under a jurisdiction specially created by the provision of a statute, then it has to act under it. The argument, however, is that section 36 (3) (a) (iii) provides that in disposing of an appeal the appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard, "pass such orders as it may think fit". Considerable reliance is, therefore, placed on the parentheses "as it may think fit" and it is argued that in the circumstances of this case, when the tribunal was prompted to remit the proceedings for a reconsideration on the ground of lack of opportunity being given to the assessee , such an opportunity should include within its fold a consideration of the grounds urged before them that the sum of Rs. 2, 32, 456. 22, Which was given up by him ought not to have been given up and he should be given an opportunity to set right matters by production of the'c'forms and claim such other ancillary reliefs. Though the argument prima facie appears equitable, yet, in the light of the definite attitude taken by the assessee before the revenue giving up his claim to agitate against the inclusion of the above turnover in the assessable turnover, he cannot be allowed to reagitate the same in a different way before the appellate authority whose jurisdiction is limited to consider the propriety, legality and regularity of the order appealed against. The Tribunal felt that in so far as the sum of Rs. 47, 114. 67, which was the subject-matter of the appeal before the Appellate Assistant Commissioner, was concerned, no adequate opportunity was given to the assessee and it is because of this that they felt that the appeal should be remitted to the lower authority, but the subject-matter was restricted to the sum of Rs. 47, 114. 67, which was the subject-matter of the appeal before the Appellate Assistant Commissioner. There was no issue, in the second appeal before the Appellate Tribunal, as regards the turnover of Rs. 2, 32, 456. 22, because by then the assessee gave up his rights to agitate about the propriety of the inclusion of such a turnover. He cannot, therefore, complain against the treatment given to the subject-mater in the case by the Appellate Tribunal when such a treatment was the result of his own conduct. We are, therefore, unable to agree with Mr. Ramachandran that the parenthesis "as it may think fit" would also include a case of the kind under consideration. The phrase must be understood ejusdem generis and the Tribunal could pass only such further orders as would be necessary and which touch open the matters in issue in the appeal before them. They cannot traverse beyond it and this the Tribunal did. The order of the Tribunal is right and the tax case is dismissed.;

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