S RAJAGOPALA NAICKER Vs. GOVERNMENT OF PONDICHERRY
HIGH COURT OF MADRAS
S. RAJAGOPALA NAICKER
GOVERNMENT OF PONDICHERRY
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ISMAIL, J. -
(1.) THIS is an appeal preferred by the assessee under S. 41 of the Pondicherry General ST Act, 1967, hereinafter referred to as the Act. In this case, the JCTO, Pondicherry determined the taxable turnover of the assessee at Rs. 31, 025 for the asst. yr. 1969-70 by his order dt. 28th January, 1971. Against this order, the assessee preferred an appeal to the AAC, Pondicherry, and the AAC by his order dt. 7th July, 1971, reduced the turnover to Rs. 18, 300. On 19th November, 1971 the Government of Pondicherry issued a notice to the assessee under S. 37 of the Act proposing to set aside the order of the AAC as well as the assessing authority and to enhance the turnover. The assessee sent a reply and thereafter the Government passed an order on 6th December, 1971, by setting aside the order of the AAC that order by re-determining the turnover at Rs. 52, 164. It is against this order of the Government that the present appeal has been filed by the assessee.
(2.) THE learned counsel for the appellant contended himself with a very short submission. THE learned counsel pointed out that the Government set aside only the order of the AAC and that if it so set aside the order of the AAC, it should have restored the order of the assessing authority and if it wanted to set aside the order of the assessing authority also, it should have done so and directed the assessing authority to conduct a fresh enquiry and that the Government itself had no power to set aside the order of the AAC and to modify the order so as to enhance the turnover over and above of what even the original authority determined. We are clearly of the opinion that this contention is well-founded. THE relevant portion of the order of the Government is a follows :- "Adopting the rate of Rs. 4 per kg. the taxable turnover comes to Rs. 52, 64. THE order of the AAC is therefore, set aside and modified as stated above." We are of the opinion that certainly the Government had the power to set aside the order of the AAC under S. 37 of the Act. When it so sets aside the order, one or the other of the following consequences may follow :- 1. It may restore the order of the assessing authority or 2. It may set aside the order of the assessing authority also and direct the assessing authority to re-determine the turnover.
However, it had no power whatever to modify the order of the AAC so as to re-determine the turnover to be in excess of the turnover determined by the assessing authority itself because the Appellate Order was passed at the instance of the assessee and therefore the assessee cannot be placed in a worse position than what he would have been if he had no preferred the appeal, by modifying the order of the AAC to the prejudice of the assessee. On this very short ground, this appeal is therefore, allowed and the order of the Government dt. 6th December, 1971, is set aside so far as it purported to modify the order of the AAC. As we have pointed out already, the Government did have the power to set aside the order of the AAC, but did not have the power to modify the said order in the manner it did. The result of our allowing the appeal in this manner and setting aside the order of the Government partially will be to restore the order of the assessing authority dt. 23rd January, 1971. There will be no order as to costs. The fee of the Government Pleader, Pondicherry, is fixed at Rs. 200 for this case.;
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