TaxTMI 
TaxTMI 
1991 (10) TMI 280
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....ssessment years 1974-75, 1975-76 and 1976-77 they had collected tax at the rate of 9 per cent and 12 per cent, respectively, from the customers on the sale of electric motors. The assessing authority, like the assessees, treated the electric motors as electrical goods falling under item 41 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 and levied sales tax at the rate of 9 per cent and 12 per cent on the sales turnover in respect of the electric motors. It transpires that the Board of Revenue clarified on 23rd March, 1978, that the electric motors were taxable at 5 per cent with effect from 3rd March, 1975 to 20th February, 1978 and at 6 per cent from 21st February, 1978 under item 81 of the First Schedule. The assessee....
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....axable as per the clarification issued by the Board of Revenue and the assessing authority was directed to give effect to the order. The Appellate Assistant Commissioner also recorded a finding that since the assessee had collected taxes at 9 per cent under a bona fide impression, it was not a case for the levy of penalty under section 22(2) of the Tamil Nadu General Sales Tax Act, particularly when the mistake was mutual between the assessees and the department and the assessees had claimed that they had refunded the excess tax to the customers. Subsequently however, the Appellate Assistant Commissioner on 9th July, 1980, issued an erratum and deleted the observation with regard to the levy of penalty, etc. in the last paragraph of the or....
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.... the Act, and such an order would not be revised by the Joint Commissioner in exercise of his suo motu powers of revision under section 34 of the Act. It was also pleaded that the Appellate Assistant Commissioner had condoned the delay after giving cogent reasons, and that in view of the clarification issued by the Board of Revenue, the order of the Appellate Assistant Commissioner particularly in view of the erratum issued on 9th July, 1980, did not require any interference on merits. The Joint Commissioner, however elaborately dealt with the powers under section 34 of the Act and rightly came to the conclusion that any order passed under section 31(3) in respect of an appeal is revisable in exercise of the suo motu powers of revision unde....
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....ity. It was an obligation on the Joint Commissioner while disposing of the revision in exercise of the suo motu powers of revision to have dealt with the objections raised by the assessees and also consider whether or not the discretion had been properly exercised by the Appellate Assistant Commissioner in condoning the delay in filing the appeal. The Joint Commissioner did not advert to those aspects at all and only after recording a finding that the suo motu powers of revision could be exercised by him in the facts and circumstances of the case, against the order of the Appellate Assistant Commissioner, set aside the order of the Appellate Assistant Commissioner. That is clearly erroneous and the order of the Joint Commissioner on that as....
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....nt year 1975-76 cannot be sustained. We, accordingly confirm the order of the Joint Commissioner relating to the assessment year 1975-76. 7.. Coming now to the appeals relating to the assessment years 1974-75 and 1976-77 the Appellate Assistant Commissioner condoned the delay and decided the appeals on merits. For condoning the delay, the Appellate Assistant Commissioner took note of the clarification issued by the Board of Revenue on 23rd March, 1978. The Appellate Assistant Commissioner also considered that the position with regard to the correct entry under which electric motors would fall got clarified only in 1978, and therefore the assessees filed appeals in 1978 and there were sufficient causes to condone the delay. The discretion w....