TaxTMI 
TaxTMI 
1991 (7) TMI 333
X X X X Extracts X X X X
X X X X Extracts X X X X
....vention of section 22(1) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter called "the Act"). Accordingly, the assessing officer by an order dated August 23, 1976, levied a penalty of Rs. 2,034 under section 22(2) of the Act being 1½ times the excess collection. On appeal, the Appellate Assistant Commissioner set aside the levy of penalty. The erstwhile Board of Revenue by a notice dated December 15, 1978, invoking the power under section 34 of the Act, asked the assessee to show cause as to why the order of the Appellate Assistant Commissioner should not be set aside and as to why the order of the assessing officer should not be restored. The appellant filed his objections on February 26, 1979 and February 9, 1980. Final or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under section 34 of the Act. The Tamil Nadu General Sales Tax Act being a special enactment and a complete code by itself, unless the power springs from the Act, the Joint Commissioner cannot seek help or draw power from any other statute. He also refers to section 2(f) and section 28 of the Act and argues that the post of Joint Commissioner of Commercial Taxes was itself created for the purpose of the Act only by Tamil Nadu Act 78 of 1986 with effect from January 1, 1987. 4.. Per contra, counsel for the Revenue refers to the Tamil Nadu Board of Revenue Abolition Act, 1980, and the notification issued under clause (iv) of sub-section (1) of section 4 of the said Act. This notification issued under Government Order G.O. Ms. No. 2675, R....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The Board of Revenue is not an authority defined under the Tamil Nadu General Sales Tax Act. Even so, section 34 as it originally stood empowered the Board of Revenue to exercise suo motu powers. The Board of Revenue was constituted under the Board of Regulation, 1803 and the Madras Board of Revenue Act, 1894. It generally comprises three members and they were empowered to exercise powers singly or as a Bench. Several enactments in the State of Tamil Nadu had named the Board of Revenue as the authority to exercise certain powers conferred under such enactments. When the Government decided to abolish the institution of the Board of Revenue, the Legislature had necessarily to make suitable provision for entrusting the powers exercised by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....venue shall include the jurisdiction and powers vested in and the duties performed by such Member either in the capacity of the Member of the Board of Revenue as such, or by virtue of an authorisation made by or under any law. Section 8. Act to override other laws.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any law for the time being in force. Section 10. Construction of references to 'Board of Revenue' or 'Member of Board of Revenue' or 'Standing Orders of Board of Revenue'.-(1) In the application of any law, any reference to the Board of Revenue or Member of the Board of Revenue shall, unless the context otherwise requires, be deemed to be a reference to the Government o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ference to the Tamil Nadu General Sales Tax Act, has transferred the jurisdiction or the power of the Board of Revenue or any Member of the Board of Revenue exercised by them immediately before the commencement of the Abolition Act (November 5, 1980) to the Joint Commissioner. The doubt and apprehension expressed by the learned counsel for the petitioner that the power must spring forth from the Tamil Nadu General Sales Tax Act stand clarified and removed by section 10 of the Act. It is made clear under section 10 that in the application of the Tamil Nadu General Sales Tax Act any reference to the Board of Revenue or Member of the Board of Revenue shall be deemed to be a reference to the appropriate authority (Joint Commissioner) specified ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....acts of the case in State of Tamil Nadu v. Jaya Pharmacy [1984] 57 STC 164 (Mad.) are clearly distinguishable. That was a case where the assessee had collected tax at 30 per cent on sales of arishtams and subsequently at 8 per cent treating the same as drugs. When the assessee pleaded that the goods are taxable only at 4 per cent, the assessing authority did not accept the contention and consequently the assessee had to go up to the Tribunal to get a ruling in his favour. In these circumstances the court came to the conclusion that both the assessee as well as the assessing authority were under a mutual mistake. Therefore, it was held that section 22(2) of the Act was not attracted. In the present case the assessee claimed that sales of mus....