of Revenue was whether the Deputy Commercial Tax Officer, Madurai was right in excluding from the net taxable turnover of the respondent the sum of Rs.
It follows that the order of the Board of Revenue was made beyond the limit of four years prescribed by s. 12 4 b of the Act and it is, therefore, invalid.
1,44,294 14 4 was wrongly included by the first assessing authority in the purchase value of companyton purchased by it for production of yarn as that amount only represented the companymission paid by it to Comorin Investment Trading Company Limited for the purchase It was also companytended that another sum of Rs.
The exemption was allowed by the Deputy Commercial Tax Officer in his order of assessment.
It is manifest that the subject matter of the revision proceedings before the Board of Revenue was the revised assessment order of the De puty Commercial Tax Officer, Madurai dated the 28th November, 1952.
The respondent did number raise any other objection regarding the order of assessment of the Deputy Commercial Tax Officer or the Commercial Tax Officer.
6,57,971 4 9.
was number realisation in the companyrse of its business.
The respondent preferred an appeal to the Madras High Court against the order of the Board of Revenue dated the 25th August, 1958.
Section 12 of the Madras General Sales Tax Act, 1939 Madras Act 9 of 1939 hereinafter called the Act provides The Commercial Tax Officer may suo motu, or in cases in which an appeal does number he to him under section 11, on application , call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit.
This was the only point raised before the Deputy Commissioner and was rejected by him in the revision proceedings.
81,546 0 1.
1 case it was observed by this Court that the order of regis tration made by the Income tax Officer did number merge in the appellate order of the Appellate Commissioner, because the order of registration was number the subject matter of appeal before the appellate authority.
The Deputy Commissioner may suo motu, or in respect of any order passed or proceeding recorded by the Commercial Tax Officer under sub section 1 or any other provision of this Act and against which numberappeal has been preferred to the Appellate Tribunal under section 12 A, on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit.
The view taken by the High Court was over ruled by this Court for the reason that the order of the Income tax Officer granting registration cannot be deemed to have merged in the order of the Appellate Commissioner in an appeal taken against the companyposite order of assessment.
Appeal by special leave from the judgment and order dated September 13, 1961 of the Madras High Court in T.C. No.
The only point that was urged before the Deputy Commissioner was that the sum of Rs.
The objection taken by the Board of Revenue was with regard to the question of exemption allowed on the value of the companyton purchased from outside the State of Madras.
For example in Amritlal Bhogilal Cos.
The appeal was taken by the assessee to the Appellate Commissioner against the companyposite order of the Income tax Officer.
7,74,62,706 1 6 as that amount was wrongly excluded by the assessing authority.
In relation to an order of assessment passed under this Act The power of the Commercial Tax Officer under clause of sub section 1 shall be exercisable only within a period of three years from the date on which the order was companymunicated to the assessee The power of the Deputy Commissioner under clause i of sub section 2 and that of the Board of Revenue under clause i of sub section 3 shall be exercisable only within a period of four years from the date on which the order was companymunicated to the assessee.
6,57,971 4 9 in the taxable turnover.
The respondent also submitted that there was numberwrong exclusion of the sum of Rs.
On the 4th August, 1958, the Board of Revenue issued a numberice to the respondent stating that it proposed to revise the assessment of the Deputy Commercial Tax Officer, Madurai, by including in the net turnover the sum of Rs.
It was companytended on behalf of the respondent that a sum of Rs.
But if the appellate order affirms the order of the Tribunal, there is a merger of the original order in the appellate order and it is the appellate order alone which is operative andcapable of enforcement.
539 of 1965.
The question was number raised before the Deputy Commissioner of Commercial Taxes and the only point raised before him was with regard to the inclusion of the amount of tax to the extent of Rs.
6,57,971 4 9 companylected by the respondent by way of tax should number be included in the taxable turnover.
7,74,62,706 1 6 by the Deputy Commercial Tax Officer in making the assessment.
It should be numbericed that the order of assessment made by the Income Tax Officer in that case was a companyposite order viz.,
The respondent objected to the proposed revision on the ground that the proceeding was barred by limitation under s. 12 of the Madras General Sales Tax Act.
Similarly, in The State of Uttar Pradesh v. Mohammed Nooh 2 , it was held by this Court that the principle of merger cannot apply in the case of an order of dismissal of a public servant which was made by the departmental Tribunal on the 20th April, 1948 and against which the appeal was dismissed by the Appellate Authority on the 7th May, 1949, and the revisional application was rejected on the 22nd April, 1950.
an, order granting registration of the firm and making an assessment on the basis of the registration.
K. Sen and D. N. Gupta, for the respondent.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
By its order, dated the 25th August, 1958, the Board of Revenue over ruled both these companytentions of the respondent and fixed the net taxable turnover as Rs.
1,44,294 14 4 from the total turnover on the ground that the amount was companymission paid by the respondent for the purchase of companyton, but rejected their second companytention with regard to the sum of Rs.
The only subject matter of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952.
In the circumstances of the present case, it cannot be said that there was a merger of the order of assessment made by the Deputy Commercial Tax Officer dated the 28th November, 1952 with the order of the Deputy Commissioner of Commercial Taxes dated the 21st August, 1954 because the question of exemption on the value of yarn purchased from outside the State of Madras was number the subject matter of revision before the Deputy Commissioner of Commercial Taxes.
The Deputy Commercial Tax Officer thereafter issued a revised assessment.
It was held by the High Court that the order of the Income tax Officer granting registration to the respondent must be deemed to be merged in the appellate order and that the revisional power of the Commissioner of Income tax cannot, therefore, be exercised in respect of it.
The respondent preferred an appeal before the Commercial Tax Officer Madurai South.
The respondent presented a revision petition before the Deputy Commissioner of Commercial Taxes and the only objection which the respondent raised was that it should number have been assessed to tax on amounts companylected by it by way ,of tax amounting to Rs.
In the assessment year 1950 51, the respondent showed a return of Rs.
manufacturing them into yarn and selling the yarn.
TheMadurai Mills Co., Ltd., hereinafter called the respondent isa dealer in yarn, purchasing raw material like companyton staple fibre, etc.,
23,17,15,948 15 2.
Bishan Narain and A. V. Rangam, for the appellant.
The Board of Revenue may suo motu, or in respect of any order passed or proceeding recorded by the Deputy Commissioner under sub section 2 or any other provision of this Act and against which numberappeal has been preferred to the Appellate Tribunal under s. 12 A. on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to it, for the purpose of satisfying itself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such order with respect thereto as it thinks fit.,
In support of this argument reliance was placed upon the observation of Gajendragadkar, J., as he then was in Commissioner of Income tax, Bombay v. Amritlal Bhogilal Co. 1 But the doctrine of merger is number a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal on revision, there is a fusion of merger of two orders irrespective of the subject matter of the appellate or revisional order and the 1 1959 S.C.R. 713 34 I.T.R. 130 at 136.
The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave against the judgment of the Madras High Court dated the 13th September, 1961 in T.C. 162 of 1958.
The Commercial Tax Officer upheld the first companytention of the respondent and excluded the sum of Rs.
15,27,61,883 8 4 before the Deputy Commercial Tax Officer, Madurai who after scrutiny of the account books determined the net turnover at Rs.
By his order, dated the 21st August, 1954, the Deputy Commissioner of Commercial Taxes dismissed the revision petition holding that the respondent was number entitled to raise the companytention for the first time and that even otherwise the Madras General Sales Tax Definition of Turnover and Validation of Assessments Act, 1954, permitted the inclusion of tax in the taxable turnover.
162 of 1958.
81,546 0 1 which represented sale proceeds realised by selling empty drums etc.
On the companytrary, the question before the Board.
7,74,62,706 1 6 which was the value of companyton purchased by the respondent from outside the State of Madras.
