# BOARD OF REVENUE, MADRAS v. M/S. RAJ BROTHERS AGENCIES ETC

- **Citation:** [1973] 3 S.C.R. 492
- **Court:** Supreme Court of India
- **Decided:** 1973-02-06
- **Case number:** Civil Appeals Nos. 492 to 493 of 1970
- **Bench:** K. S. Hegde, P. Jaganmohan Reddy, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/board-of-revenue-madras-v-m-s-raj-brothers-agencies-etc-5834
- **Pages:** 5

## Headnote

Madras General Sales Tax A.ct 1959-S. 34(1)-Meaning of Ifie ll'ords
"Subject of an cippepl to the appellate .Tribunal"-Whetlter an appeal
against a time-barred order can be considered as an order lV/iich :!rad
been made the subject of an appeal.
The respondent was assessed to Sales Tax during the assessment
years 1960-61 and 1961·62. Against the said orders of assessment, the'
respondent went up in appeal to the Appellate Assistant Commissioner.,
who dismissed the appeals.
011 a second appeal
to
the
Sales
Tax
Appellate Tribunal, these appeals were also dismissed as being
time
barred. Thereafter, the assessee moved the Board of Revenue under
s. 34(1) of the Madras Sales Tax Act, 1959 to revise the
assessmenil
orders.
The Board came to the conclusion that it had no jurisdiction.
to entertain those petitions. On a writ petition, the High Court held
that the Board has jurisdiction to cntcrtahl those appeals aod therefore,
issued a writ of mandamus to the Boa'rd, to entertain the .revision peti·
tions and to consider them on merits. The State against that decision,
has come up in appeal before this Court.
The main question in these appeals was for determination of the true
scope of s. 34.
Section 34(1) gives power to the Board of Revenuo
suo 1noto to call for and examine an order passea- by the
appropriate
authorities under some of the provisions df the Act. Section 34(2) pro·
vides that the Board of Revenue shall not pass any
order under
sub·
section (I), if the time for appeal against that order has not expired cor
that the order has been made the subject of an appeal to the Appellate
Tribunal, or of a revision before the High Court, or that n1ore than 4
years have expired after the passing of the order.
The question for consideration was whether an appeal against an ord4:r
which was dismissed as time barred can be considered as an order ~·hich
had been made the subject of an appeal.
Dismissing the appeal,
HELD: (i) The sCope of s. 34 came up for consideration before the
Madras High Court in Erode Yarn Stores v. State of .Madras in which it
was held by the High Court of Madras that before the jurisdiction of the
Board to exercise its power under s. 34 is taken away, the appeal filed
before the Tribunal must have been an
effective appeal,
and that an
appeal which was dismissed on the ground of limitation, is not a'1 effective appeal.
That decision has stood the test of time and till no\\· it is
good law.
After that decision of the High Cour~ the Act has been sub·
jected to several amendments, the Legislature not thought fit
to amend
s. 34. Therefore, it would. not be proper to upset that decision at this
late stage and disturb the settled position in law. If the State wants to
change the law, it is open to it to move the Legislature for making the
necessary amendments.
[49,B-EJ
Erodt Yarn Storts v. State of Madras, 14 S.T.C .. 734, referred to.
(ii) The second contention of the appellant that the assessc'e had no
right to· invoke the jurisdiction of the Board to exercise its
revision al
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REVENUE BOARD v. RAJ BROS. (Hegde, J.)
493
A
power has also no force. The power is conferred on the Board to remedy
an injustice.
It is open to an a&SCMee or the revenue to bring to the
notice of the Board any error made by the subordinate authorities. It is
up to the Board to consider whether the case is fit case for exercising its
revisional jurisdiction. If the Board had gone into the case and come to
the conclusion that there was no justification for exercising its jurisdiction under s. 34, then in absence of any vitiating circumstances, the High
B
Court would not interfere with the discretion of the Board. [49-5E·G]
(iii) In the present case, the decision of the Board was vitiated by an
error apparent on the face of the record. The Board had refused
to
exercise its jurisdiction under an erroneous view that the assessee's appeal
was dismissed and therefore, it was not competent to entertain the petition. In the circumstances,

## Text

492
BOARD OF REVENUE, MADRAS
v.
M/S. RAJ BROTHERS AGENCIES ETC.
February 6, 1973
[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]
Madras General Sales Tax A.ct 1959-S. 34(1)-Meaning of Ifie ll'ords
"Subject of an cippepl to the appellate .Tribunal"-Whetlter an appeal
against a time-barred order can be considered as an order lV/iich :!rad
been made the subject of an appeal.
The respondent was assessed to Sales Tax during the assessment
years 1960-61 and 1961·62. Against the said orders of assessment, the'
respondent went up in appeal to the Appellate Assistant Commissioner.,
who dismissed the appeals.
011 a second appeal
to
the
Sales
Tax
Appellate Tribunal, these appeals were also dismissed as being
time
barred. Thereafter, the assessee moved the Board of Revenue under
s. 34(1) of the Madras Sales Tax Act, 1959 to revise the
assessmenil
orders.
The Board came to the conclusion that it had no jurisdiction.
to entertain those petitions. On a writ petition, the High Court held
that the Board has jurisdiction to cntcrtahl those appeals aod therefore,
issued a writ of mandamus to the Boa'rd, to entertain the .revision peti·
tions and to consider them on merits. The State against that decision,
has come up in appeal before this Court.
The main question in these appeals was for determination of the true
scope of s. 34.
Section 34(1) gives power to the Board of Revenuo
suo 1noto to call for and examine an order passea- by the
appropriate
authorities under some of the provisions df the Act. Section 34(2) pro·
vides that the Board of Revenue shall not pass any
order under
sub·
section (I), if the time for appeal against that order has not expired cor
that the order has been made the subject of an appeal to the Appellate
Tribunal, or of a revision before the High Court, or that n1ore than 4
years have expired after the passing of the order.
The question for consideration was whether an appeal against an ord4:r
which was dismissed as time barred can be considered as an order ~·hich
had been made the subject of an appeal.
Dismissing the appeal,
HELD: (i) The sCope of s. 34 came up for consideration before the
Madras High Court in Erode Yarn Stores v. State of .Madras in which it
was held by the High Court of Madras that before the jurisdiction of the
Board to exercise its power under s. 34 is taken away, the appeal filed
before the Tribunal must have been an
effective appeal,
and that an
appeal which was dismissed on the ground of limitation, is not a'1 effective appeal.
That decision has stood the test of time and till no\\· it is
good law.
After that decision of the High Cour~ the Act has been sub·
jected to several amendments, the Legislature not thought fit
to amend
s. 34. Therefore, it would. not be proper to upset that decision at this
late stage and disturb the settled position in law. If the State wants to
change the law, it is open to it to move the Legislature for making the
necessary amendments.
[49,B-EJ
Erodt Yarn Storts v. State of Madras, 14 S.T.C .. 734, referred to.
(ii) The second contention of the appellant that the assessc'e had no
right to· invoke the jurisdiction of the Board to exercise its
revision al
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REVENUE BOARD v. RAJ BROS. (Hegde, J.)
493
A
power has also no force. The power is conferred on the Board to remedy
an injustice.
It is open to an a&SCMee or the revenue to bring to the
notice of the Board any error made by the subordinate authorities. It is
up to the Board to consider whether the case is fit case for exercising its
revisional jurisdiction. If the Board had gone into the case and come to
the conclusion that there was no justification for exercising its jurisdiction under s. 34, then in absence of any vitiating circumstances, the High
B
Court would not interfere with the discretion of the Board. [49-5E·G]
(iii) In the present case, the decision of the Board was vitiated by an
error apparent on the face of the record. The Board had refused
to
exercise its jurisdiction under an erroneous view that the assessee's appeal
was dismissed and therefore, it was not competent to entertain the petition. In the circumstances, the High Court was justified in interfering
with that decision.
[4950-H]
C
Mis. Melara1n & Sons v. The Co1n1nissioner of Inco1ne 4 tax, Punjab,
[1956] S.C.R. 1966, referred to.
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CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 492 to
493 of 1970.
Appeals by certificate from the Judgment and order dated
December 9, 1968 of the Madras High Court in W. Petition
Nos. 4628 and 4630 of 1965.
A. V. Rangam and A. Subhashini, for the appellant.
Respondent did not appear.
The Judgment of the Court.was delivered by
HEGDE, J. These appeals are by certificate. They are directed
against the Order of the Madras High Court in two writ petitions
in which Mandamus was issued to the Board of Revenue to consider and decide the revision petitions filed by the assessee--respondent under S. 34(1) of the Madras General Sales Tax Act, 1959
(1of1959) (hereinafter called the 'ACT').
The fjlcts of the case lie within a narrow compass. The res'
ponC!ent-assessee was assessed to sales tax during the assessnient
years 1960-61 and 1961-62. Aggrieved by the orders of the
assessing authorities, he went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed his appeals. Thereafter, he filed second appeal to the Sales
Tax Appellate Tribunal, Madras. Tiiose appeals were dismissed
as having been time.barred. After the Tribunal dismissed the
appeals the·assessee moved the Board Of Revenue under S. 34(1)
to revis& the a8sessment orders. The Board came to the conclusion
tllat it had no jurisdiction to entertain those petitions. The High
Court. in the writ petitions filed held that the Board had jurisdiction to entertain those appeals and consequently issued a writ
of mandamus to the Board to entertain the revision petitions and
oonsider them on merits. It is against that decision the State of
Tamil Nadu has come up in ajlpeal.
494
SUPREME COURT REPORTS
[1973] 3 S.C.R.
In these appeals we are called upon to detennine the true
scope of s. 34.
S. 34(1) confers on the Board of Revenue ~uo
motu power to call for and examine an order passed or proceeding recorded by the appropriate authorities under some of the
provisions of the Act.
S. 34(2) reads thus :
"The Board of Revenue shall not pass any order
under sub-section ( 1) if. .....
(a) the time for appeal against that order has not
expired; or
(b) the order has been made the subject of an
appeal to the Appellate Tribunal or of a revision
in the High Court; or
( c) more than four years have expired after the
passing of the order."
The question for consideration is as to what is the meaning
of the expression "the order has been made the subject of an
appeal ? Whether an appeal against an order which wa~ dismissed as having been barred by time can be considered as an order
which had been made the subject of an appeal ?" This question
does present some difficulty.
But in view of the circumstances,
which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court.
As far back as 1963 the scope of s. 34 came up for consideration
before the Madras High Court in Erode Yarn Stores v. State o.f
Madras('). Therein the assessee contended that once an appeal
is filed before a Tribunal, the Board is precluded from invoking
its power under s. 34. The State of Madras controverted that
position. Therein the State contended that before the jurisdiction
of the Board to exercise its power under s. 34 can be held to be
taken away, the appeal filed before the Tribunal must have been
an effective appeal and that an appeal which was dismissed on the
ground of limitation is not an effective appeal. The High Court
of Madras accepted that contentton and decided the case in
favour of the State. In arriving at the conclusion that the words
"subject of an appeal" mean subject of an "effective apoeal" High
Court took into consideration the mischief that would otherwise
arise namely, all that an assessee. who wants to stifle the Board's
suo · motu power of revision, has to do is to file a time-barred
appeal and get it dismissed. It was because of that difficultv the
Hieb Court in Erode Yarn Stores' case came to the conclusion
that exnression the order which has been the subject of an an"l',al
as meaning "subject of an effective appeal". In arriving at that
decision. the Hil?h Court did take into consideration the decision
of this Court in Messrs. Mela Ram & Sons v. The Commissioner
(I) 14 S.T.C. n4.
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REVENUE BOARD v. RAJ Ell.OS. (Hegde, J.)
495
of Incqme-tax, Punjab(') wherein this Court ruled tbatanappeal
presented out of time is an appeal and an order dismissing it as
lime-barred is one passed in an appeal. That was a decision rendered under the provisions of the Indian Income 'J)x Act, 1922.
The question for decision in that case was whether an appeal lay
against an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred.
In the circumstances of the present case it is not necessary for
us to consider whether the decision of the High Court in Erode
Yarn Stores' case was correctly decided. That decision was rendered in respect of a provision in a State Act. It was rendered
as far back as 1963. In that case the High Court accepted the
contention of the State. That decision has stood the field till now.
It must have governed several cases, decided thereafter.
After
that decision was rendered, the Act had been subjected to several
amendments.
The Legislature has not thought fit to amend s. 34.
To put it differently the State had prayed for and obtained a particular interpretation of s. 34. It has accepted that interpretation
to be correct ever since 1963. Under these circumstances it is
not proper for this Court to upset that decision at this late stage
and disturb a settled position in law. If the State wants to change
the law it is open to it to move the Legislature for making the
necessary amendments. We find it difficult to appreciate the State
conduct in taking inconsistent positions.
Yet another contention was taken on behalf of the State.
rt
was contended on behalf of the State that the assessee had no
right to invoke the jurisdiction of the Board to eiercise its revi,
sional power. This contention too has to be rejected. The power
is conferred on the Board to remedy any injustice. It is open to
an assessee or the Revenue to bring to the notice of the Board any
error made by the subordinate authorities. It is up to the Board
'to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come
to the conclusion that there was no justification for exercising its
jurisdiction under s. 34, then in the absence ()f any vitiating circumstance recognised by law the High Court would not have
interferred with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its
jurisdiction under the erroneous view that in view of the dismissal
of the assessee's appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent
on the face of the r&:ord. Hence the High Court was justified in
interfering with that decision. Whether the case is a fit one for
exercising jurisdiction of the Board or not is entirely a matter for
the Board to consider and decide. Mr. Rangam drew our atten-
(1) (1956] S.C.R. !66.
496
SUPREME COURT REPORTS
(1973] 3 S.C,R.
tion to two decisions of the Andhra Pradesh High Court where the
High Court held that no appeal lay against the order of the Andhra
Pradesh Revenue Board under s. 20 (1) of the Andhra. Pradesh
General Sales Tax Act, 1957, which provision is similar to s. 34
of the Act. Those deCisions lend no assistance to the appellants'
case.
In the result these appeals fail and they are dismissed. The
respondents are absent and hence there will be no order as to
costs.
·
S.N.C.
Appeals dismissed.
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