Majmudar, C.J.
1. These three Appeals under Section 16 of Karnataka Tax on Entry of Goods Act,.1979 (hereinafter referred to as 'the Act') are taken out by an assessee M/s. Steel Suppliers, being aggrieved by identical orders dated 22.7.1993, passed by the Joint Commissioner of Commercial Taxes (Administration), Bangalore Sub-Division, Bangalore in No. SMR.KTEG.187/89-90, SMR.KTEG,188/89-90 and SMR.KTEG.189/89-90. All these three orders are passed under Section 15(1) of the Act, though wrongly mentioned as orders under Section 16(1) of the Act. T.A.(ET) 10/94 is concerned with period of assessment from 16.11.1982 to 3.11.1983, TA(ET) 11/94 concerns the period of assessment from 1.4.1982 to 15.11.1982 and TA(ET) 12/94 concerns period of assessment from 4.11.1983 to 23.10.1984. By the orders under appeal, assessment orders passed by the Assistant Commissioner of Commercial Taxes, 26th Circle, Bangalore in the case of the appellant for the concerned periods have been revised by the revisional authority and the assessing authority is directed to issue demand notice accordingly.
2. A few relevant facts leading to these Appeals are required to be noted at the outset.
The appellant is dealing in iron and Steel and is registered under the Act, on the file of the Assistant Commissioner of Commercial Taxes, 26th Circle, Bangalore. For the assessment period 16.11.1982 to 3.11.1983 assessment ,was completed by the Assistant Commissioner by his order dated 4.8.1986. The said authority also completed the assessment on the same day for the assessment period 1.4.1982 to 15.11.1982 and similarly on the same day he also completed the assessment for the period 4.11.1983 to 23.10.1984.
3. The Deputy Commissioner of Commercial Taxes (Administration), City Division-l took up the assessment records of the appellant and suo motu initiated revisional proceedings as provided by Section 15(1) of the Act and issued show-cause notices dated 22.7.1989 on the ground that the orders of the Assessing Authorities were erroneous and prejudicial to the interest of the Revenue. The basis of the show-cause notices was that in the concerned assessment years, the appellant had purchased Iron and Steel from M/s Tata Iron and Steel Company and others and brought the purchased goods within the local area and therefore, these purchased materials had entered the local limits of Bangalore, on which the appellant assessee was liable to pay the Entry Tax and still the assessing authority had treated these purchases as local purchases and had exempted them from the payment of Entry Tax. These orders of the assessing authority, according to the revisional authority, were erroneous in so far as they were prejudicial to the interest of the Revenue and consequently, notices were issued to the assessee to show-cause why orders of the assessing authority should not be revised.
4. The appellant filed its replies dated 31.7.1989 through his Chartered Accountant, to the show-cause notices dated 22.7.1989. In the said reply, two months time was sought for supplying Form No. 30 for establishing its case that the purchases in question were local purchases from the sellers who had imported those goods and therefore, liability to pay Entry Tax was of the sellers and not of the appellant. It appears that thereafter the matters were adjourned by the revisional authority, but the Form No. 30 were not produced. Under these circumstances, second show-cause notice was issued on 11.3.1992. Reply was filed on 11.5.1992 by the appellant. In the said reply, the appellant took-up the contention that though he had purchased the goods from outside the local limits of Bangalore City Corporation from the godowns of the sellers situated outside the Municipal limits, he had taken those goods to his own godowns which were also situated outside the Municipal Limits and from there appellant effected the sales to the purchasers. Thus a new case was put forward by the appellant in the second reply dated 14-5-1992 that though the goods were purchased by the appellant himself from local sellers, but he purchased them outside the Municipal Limits and had disposed them of also outside the Municipal limits. Meaning thereby he had not caused the entry of the goods in Bangalore Municipal Limits. Thereafter, the third show-cause notice was issued to the appellant on 14-7-1993 which was replied on 21-7-1993 by submitting that sufficient correspondence has been entered into and the appellant has already submitted by his earlier reply what he has to say. It is, thereafter that the impugned orders came to be passed by the revisional authority on 22-7-1993.
As noted earlier, the dissatisfied assessee is in appeal against that revisional orders under Section 16(1) of the Act.
5. We have heard Sri Kamath, learned Counsel for the appellant and Sri Ramesh, learned Standing Counsel for the Department, respondent. As common question of fact and law arises in these Appeals, all these Appeals were heard together by consent of learned Counsel for the parties and are being disposed of by this common Judgment.
6. Sri Kamath, learned Counsel for the appellant, raised the following contentions in support of the Appeals:
1. The Joint Commissioner of Commercial Taxes (Administration) Bangalore who has passed the impugned order on 22-7-1993 in these three Cases has no jurisdiction to exercise powers under Section 15(1) and therefore, the orders are null and void.
In the alternative and on merits, it was submitted.
2. That the Revisional authority has patently erred in law in holding that the assessment orders were erroneous and prejudicial to the interest of the revenue though on correct appreciation of facts on record, it ought to have been held that assessment orders were perfectly justified and legal and required no interference by the Revisional authority.
We shall deal with these contentions seriatim.
Point No. 1: So far as the question of the jurisdiction of the Authority passing the impugned order is concerned, the learned Counsel for the appellants submitted that the show cause notices were issued, by the Deputy Commissioner. The impugned order is passed by Joint Commissioner of Commercial Taxes. Therefore, the Notification dated 31-7-1981 issued by the Commissioner of Commercial Taxes in exercise of his powers under Section 15(1) empowering Deputy Commissioner of Commercial Taxes (Admn.) to exercise the powers conferred by Sub-section (1) of Section 15 could not authorise the Joint Commissioner to pass such an order. It was also submitted that the Notification dated 31-7-1981 was outside the scope of Section 15(1) of the Act as it did not involve any special empowerment to the concerned officer, but it was merely a general empowerment.
7. It was next submitted by Sri Kamath, learned Counsel for appellants that a later Notification dated 19-1-93/22-4-93 was issued by State of Karnataka in exercise of its powers under Section 12(1) of the Act empowering specified officers as mentioned in Column 2 of the Table as found in the said Notification to exercise power under Section 15 of the said Act in respect of the dealers falling in the areas specified in Column-4 of the Table. The Joint Commissioner of Commercial Taxes(Admn.) in any case lost his jurisdiction to pass the impugned order after the coming into operation of the aforesaid Notification as the order is passed on 22-7-93 three months after the gazetting of the aforesaid Notification. As per the said Notification all pending proceedings initiated by the authorities under Section 15 other than Commissioner of Commercial Taxes had stood transferred to the respective Zonal Additional Commissioners of Commercial Taxes in so far as dealers coming under their respective jurisdiction were concerned. That so far as the appellant is concerned he was a dealer within the jurisdiction corresponding to that of the Joint Commissioner of Commercial Taxes(Admn.) of City Division-1 of Bangalore and hence as per serial No. 1 of the Table found in the said Notification with effect from 22-4-83 only Addl. Commissioner of Commercial Taxes, City Zone-1 could proceed with the said proceedings under Section 15(1) of the Act. Consequently, the Joint Commissioner of Commercial Taxes(Admn.) City Division-1 was not competent to pass the impugned order even on this score.
8. On the other hand Sri Ramesh, learned standing Counsel for the Respondent-Revenue Authority submitted that the Impugned order passed by the Joint Commissioner is perfectly within his jurisdiction. In this connection Mr. Ramesh firstly submitted that under Section 15(1) the Legislature has in terms authorised the Commissioner to specially empower any other officer to exercise powers under Section 15(1), that such empowered officer would function on his own and independently of the officers expressly mentioned by the Legislature in earlier part of Section 15 who on account of Legislative empowerment can of their own exercise such powers. That by virtue of Notification dated 31-7-81 the then Commissioner of Commercial Taxes, Karnataka, Bangalore, in exercise of his powers under Section 15(1) 3rd part, had specially empowered the Deputy Commissioner of Commercial Taxes (Admn.) to exercise powers under Section 15(1) in regard to any orders passed by any officers subordinate to him. That it is not in dispute that the original order passed by the Assistant Commissioner was by an officer subordinate to Deputy Commissioner and therefore the Deputy Commissioner by virtue of the aforesaid delegation of powers by the Commissioner could validly exercise jurisdiction under Section 15(1), that accordingly the show-cause notices were issued by the Deputy Commissioner. That the Notification dated 31-7-81 specially empowers the Deputy Commissioner of Commercial Taxes (Admn.) and does not involve any general empowerment as alleged by learned Counsel for the appellant. Mr. Ramesh further submitted that the said Notification has not been rescinded or superseded or modified by Commissioner at any time thereafter and it was in force when the impugned order came to be passed.
9. Mr. Ramesh, further submitted that on 31-7-81 when the said Notification was issued by the Commissioner under Section 15(1) it specially empowered the Deputy Commissioner of Commercial Taxes (Admn.) to exercise his aforesaid powers. The term 'Deputy Commissioner' was not defined by the Act but it got defined in 1985. Therefore, from 1985 onwards the said Notification had to be read in the light of the term 'Deputy Commissioner' as defined by Section 2(3)(a) as brought on the statute book with effect from 10-9-85 by the amending Act 28/1985. He further submitted that because of the subsequent amendment in the Act brought about by Karnataka Act 5 of 1993, for expression Deputy Commissioner the term 'Joint Commissioner' stood substituted in the Act and that substituted nomenclature of 'Joint Commissioner' for the erstwhile Deputy Commissioner had to be read in the Notification of 1981 as it was a statutory notification which had to be read with the Act and as apart of the Act. Mr. Ramesh, in this connection also heavily leaned on Section 20 of the Karnataka General Clauses Act 1899. Mr. Ramesh, therefore, contends that on the date when the impugned order was passed the Notification dated 31-7-81 would squarely apply to empower the Joint Commissioner of Commercial Taxes (Admn.) to pass such order as the earlier term 'the Deputy Commissioner of Commercial Taxes (Admn.)' employed therein will have to be read as Joint Commissioner of Commercial Taxes (Admn.), in the light of the amending Act 5/93 which had already come into effect from 4-2-93.
10. In this connection Mr. Ramesh invited our attention to the Judgments of the Supreme Court to which we will make reference hereinafter. Referring to the Notification dated 19-1/27-4-1993 issued by the State of Karnataka under Section 12(1), Mr. Ramesh submitted that the said Notification has no effect on the present proceedings as all that it tried to do was to bifurcate the jurisdiction of erstwhile Additional Commissioner of Bangalore into jurisdictions of five Additional Commissioners of five Divisions and reallocate all pending proceedings initiated under Section 15(1) by Statutory Authorities other than the Commissioner under Section 15(1) which would include Joint Commissioner or Additional Commissioner by virtue of their own powers under Section 15(1) and not as delegate of the Commissioner. Only these proceedings stood transferred to the Additional Commissioners of respective Zones as indicated in the table to the Notification. That was the limited effect of Notification under Section 12(1). In this connection he submitted that if the contention of the learned Counsel for the appellant is accepted, then it would amount to repealing of 3rd part of Section 15 and abolishing the clause earmarking the capacity of the delegate of the Commissioner for exercise of powers under Section 15(1) and that too by the Executive Authority like State Government which itself had a delegated Legislative function under Section 12(1). That such a delegate could not repeal any provision of the statute -enacted by the parent legislation itself.
11. In the light of these rival contentions on the question of jurisdiction of the Joint Commissioner of Commercial Taxes (Admn.) who passed the impugned order, we now proceed to tackle this problem. In the first instant, we may refer to Section 15 of the Act as it stood at the time when the show-cause notices were issued against the appellant. Section 15(1) which is the only material provision for our present purpose read as under, at the time first show-cause notice dated 22-7-1989 was issued:
'15.(1). Revision by the Commissioner, of orders prejudicial to revenue:-
The Commissioner or any other officer specially empowered by the Commissioner in this behalf may call for and examine the record of any proceedings under this Act, and if he considers that any order passed therein by any officer is erroneous in so far as it is prejudicial to the interest of revenue, he may, if necessary, stay the operation of such order for such period as he deems necessary and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.'
12. By the time second show-cause notice dated 11-3-92 was issued, Section 15(1) stood as under:
'15.(1). Revision by the Commissioner or the Joint Commissioner of orders prejudicial to revenue:- (1) The Commissioner or the Joint Commissioner or any other officer specially empowered by the Commissioner in this behalf may call for and examine the record of any proceedings under this Act, and if he considers that any order passed therein by any officer is erroneous in so far as it is prejudicial to the interest of revenue, he may, if necessary, stay the operation of such order for such period as he deems necessary and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.'
13. By the time the III show-cause notice dated 14-7-93 was issued and also by the time the impugned order was passed on 22-7-93, Section 15(1) stood as under:
'15.(1). Revision by the Commissioner or the Additional Commissioner of orders prejudicial to revenue:
(1) The Commissioner or the Additional Commissioner or any other officer specially empowered by the Commissioner in this behalf may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, if necessary, stay the operation of such order for such period as he deems necessary and after giving the assessee an opportunity being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.'
14. In these proceedings we are mainly concerned with the jurisdiction of the Authority passing the order dated 22-7-93. Therefore, Section 15(1) as it stood then has to be kept in view. As per the said provision the Legislature has earmarked three authorities which can exercise powers under Section 15(1) viz., (1) Commissioner himself (2). The Additional Commissioner or (3) Any other officer specially empowered by the Commissioner in this behalf. It is not the case of either side that the Commissioner or the Additional Commissioner has passed the impugned order acting as earmarked statutory authority under Section 15(1) by Legislature itself. In this connection both the sides have relied upon the IIIrd part of Section 15(1) viz., special empowerment of any other officers by the Commissioner to exercise such powers. Mr. Kamath for Appellant contends that Joint Commissioner of Commercial Taxes (Admn.) who passed the impugned order was not such a specially empowered officer by the Commissioner, so as to fit in with the description of such officer as found in the III part of Section earmarking such an authority for the purpose. While Revenue on the other hand contends that the Joint Commissioner, Commercial Taxes (Admn.) was such a specially empowered officer by the Commissioner and therefore he could exercise such power as delegate of the Commissioner falling in the 3rd category of officers who could exercise such powers under Section 15(1). For resolving this controversy we will have to first turn to the parent Notification issued by the Commissioner of Commercial Taxes under Section 15(1) in 1981.
15. We have already seen that under Section 15(1) of the Act, the officer specially empowered by the Commissioner may also exercise powers of revision against the orders of his subordinates. In exercise of this power, the then Commissioner of Commercial Taxes, Karnataka Sri I.N. Sing had issued Notification dated 31-7-1991 empowering and authorising the Deputy Commissioner of Commercial Taxes (Administration) to exercise the powers conferred by Sub-section (1) of Section 15 in regard to any orders passed by any subordinate officer, within their respective jurisdiction under the Karnataka Sales Tax Act, 1957.
16. The first contention of Sri Kamath, learned Counsel for the appellant against the said Notification is that even if this Notification has continued to operate alt throughout, it would not be effective and valid inasmuch as Section 15(1) of the Act under which it is issued, requires the Commissioner to specially empower the concerned officer mentioned in the Notification. That the Notification on the other hand, authorises the Deputy Commissioners of Commercial Taxes (Administration) in general and they are empowered to exercise revisional powers under Sub-section (1) of Section 15 in regard to any order passed by any officer subordinate to them within their respective jurisdiction under the Karnataka Sales Tax Act. Thus this Notification empowers all such Deputy Commissioners working in any part of the Karnataka State, while the Notification issued under Section 15(1) requires special empowerment to a particular named officer enabling him to exercise revisional powers qua subordinates working under him in the given jurisdiction. As that is not done, the Notification is inoperative and cannot be treated to be making special empowerment to the then Deputy Commissioner of Commercial Taxes (Administration) Bangalore to deal with the petitioner's case. This contention is tried to be met by Sri Ramesh, for the Revenue on two grounds. Firstly, he submits that validity of such Notification cannot be challenged in appeal in hierarchy of proceedings under the Act. For that purpose, he relies upon the Decision of the Allahabad High Court in 24 STC 74. In our view, it is not necessary to consider the applicability of that Decision as Mr. Kamath, for the appellant made it clear that he is not submitting that the said Notification is ultra vires Section 15(1) of the Act, but his submission is limited to the effect that the said Notification will not amount to conferring any special empowerment under Section 15(1) to the then Deputy Commissioner of Commercial Taxes (Administration) Bangalore. We have, however, to consider whether the said Notification confers general empowerment to such officers or confers special empowerment to the concerned officers for exercising revisional powers over the orders of the subordinates within their respective jurisdiction. So far as this aspect of the matter is concerned, there is a direct Decision of the Supreme Court on the point which clinches the issue.
17. In the case of THE STATE OF GUJARAT v. CHATURBHUJ MAGANLAL : 1976CriLJ1367 , the Supreme Court was concerned with the question whether the notification issued under Section 2(c) of the Immoral Traffic in Women and Girls Act could be said to have specially empowered the concerned Magistrate of First class to try the offence under the Act in the area falling under his jurisdiction or can the notification be treated to be not specially empowering such Magistrates, on the wordings of the said notification. Section 2(c) defined a Magistrate to mean a District Magistrate, Sub-Divisional Magistrate, First Class, specially empowered by the State Government to exercise the jurisdiction under the Act. The notification in question which was issued under Section 2(c) of the Act by the State Government empowered all the Judicial Magistrates of First Class in the State by virtue of their office to try the offences under the Act in the area of their respective jurisdiction. The question before the Supreme Court was whether such a general notification earmarking the class of officers for discharging their functions under the Act as Magistrates in the area of their respective jurisdictions could be treated to be effecting special empowerment or general empowerment. The accused contended that it was a general empowerment and not a special one. Rejecting that contention, the Supreme Court speaking through SARKARIA, J., made the following pertinent observations:
'The term 'specially' in the expression 'specially empowered' in Section 2(c) of the Immoral Traffic in Women and Girls Act must be taken to have reference to special purpose of the empowerment. The word qualifies the word 'empowered' and has been used jn an attributive sense to highlight the special nature of the power. It does not convey the sense of contradistinction or contrast between 'Special' empowerment and 'general' empowerment. All that this word signifies is the investment of some or alt the Magistrates of First Class under the Criminal P.C. In short the word 'specially' connotes that it is the empowerment which is, special and not the person. Thus considered special empowerment does not necessarily involve selection of individuals by name of ex officio from the Magistrates of the First Class.'
The empowerment of all the Magistrates of the First Class, in one notification being Government Notification No. PPA/ 1257/ 84187/X of 22-7-1958 published in Bombay Government Gazette on 31-7-1958 empowering all Judicial Magistrates of First Class in the State by virtue of their office to try offences under the Act in the area of their jurisdiction must be held to be 'special' and not general.'
The situation in the present case is almost identical. Section 15(1) of the Act enables the Commissioner of Commercial Taxes to earmark officers to be treated as specially empowered for the purpose of exercising powers under Section 15. The Notification in terms earmarked class of such officers, Deputy Commissioners of Commercial Taxes (Administration) empowering them to revise the orders of their subordinates functioning under their respective jurisdictions. Identical was the notification before the Supreme Court and once the Supreme Court has held that such a notification amounted to special empowerment and not general empowerment, it must necessarily be held that present Notification of 1981 also has specially empowered the said officers for the purpose of Section 15(1). The Supreme Court in that Decision in terms has referred with approval the earlier Decision in ABDUL HUSSAINS' CASE : [1968]1SCR597 , wherein it was observed that if the meaning of the words specially empowered were to be that which is canvassed by the appellant, Government should have issued separate notification for each of the Special Land Acquisition Officers authorising them to individually perform the functions of Collector within their respective jurisdiction. That could have been done even by one notification authorising each of them to perform those functions within their respective jurisdictions. That such a notification would mean that the Government thereby appoints each of the Special Land Acquisition Officers to perform the functions of the Collectors within their respective areas. Having referred to the aforesaid Decision of About Hussain's case, in paragraph 26 it was observed that:
'On parity of reasoning, it can be said that the empowerment of all the Magistrates of the First Class in the State under one notification by virtue of their office to try offences under the Act in the area of their respective jurisdiction, must be held to be 'special' and not 'general'.
Mr. Kamath, learned Counsel for the appellant in connection with the aforesaid Supreme Court Decision submitted that in that case office of the Magistrates was already contemplated by the Act, while in the present case, when Notification of 1981 was issued, there was no post of Deputy Commissioner as contemplated by the Act and that the said term came to be inserted in the Act for the first time in 1985. In our view, this distinction is without any real difference. As per Section 15(1) of the Act, Commissioner is delegated the power to specially empower any officer of his choice to exercise the powers under Section 15(1). It cannot be disputed, Deputy Commissioner of Commercial Taxes (Administration) functioning under the Karnataka Sales Tax Act, 1957 was one of such officers. Even that apart, after 1985 the term Deputy Commissioner got defined by the Act itself. We are concerned with the operation of this Notification years thereafter when for the first time notice was issued by the delegate of the Commissioner under Section 15(1) on 22-7-1989. By that time, the Deputy Commissioner of Commercial Taxes was an officer contemplated by the Entry Tax Act itself. Consequently, attempt on the part of Sri Kamath to distinguish the ratio of the aforesaid Supreme Court Decision is of no avail to him.
18. On a parity of reasoning therefore, we must hold that Notification of 1981 also confers special empowerment to the earmarked class of officers namely, the Deputy Commissioners of Commercial Taxes (Administration) for discharging revisional jurisdiction in connection with the orders of their subordinates in their respective jurisdiction. As such the Notification cannot be said to be an instance of general empowerment and not special empowerment.
19. It was alternatively contended by learned Counsel for the appellant Sri Kamath, that even if it is held that Notification specially empowered the Deputy Commissioner of Commercial Taxes (Administration) to exercise powers under Section 15(1), in 1981 when this Notification was issued there was no post of Deputy Commissioner of Commercial Taxes (Administration) as defined under the Act. It is true that such a definition was inserted by Section 2(3a) with effect from 109-1985. The said definition reads as under:
2(3a) 'Deputy Commissioner' means the Deputy Commissioner of Commercial Taxes appointed under the Karnataka Sales Tax Act, 1957.
Mr. Kamath, learned Counsel for the appellant, also agreed that by the time notices were issued under Section 15(1) by that officer, such an officer was contemplated by the Act. However, his grievance is that when the impugned order came to be passed on 22-7-1993, it was passed by Joint Commissioner of Commercial Taxes (Administration), who was not at all referred to in the Notification on 31-7-1981. Therefore, the Joint Commissioner of Commercial Taxes (Administration), cannot be said to be specially empowered officer by the Commissioner as per the Notification dated 31-7-1981. So far as this alternative contention of Sri Kamath is concerned, Sri Ramesh, learned Counsel appearing for the revenue heavily relied upon two Decisions of the Supreme Court, AIR 1951 SC 318 State of Bombay vs Balsara & 1957 SC 790 Kailash Nath vs State of U.P. for submitting that the notification which is a statutory notification issued under Section 15(1) has to be read with the parent Act namely, the Entry Tax Act. That in the parent Act itself, the amendment was brought about by Karnataka Act 5/93 with effect from 4-2-1993 and by Section 2 Sub-section (3) thereof, it was laid down by the Legislature that in Karnataka Tax on Entry of Goods Act, 1979 for the expressions 'Assistant Commissioner', 'Deputy Commissioner' and 'Joint Commissioner' wherever they occur, the expressions 'Deputy Commissioner', 'Joint Commissioner' and 'Additional Commissioner' shall respectively be substituted. Therefore, according to Sri Ramesh, learned Counsel for the Revenue, the word 'Deputy Commissioner' should be read as 'Joint Commissioner'.
20. Mr. Kamath, learned Counsel for the appellant tries to repel this submission by contending that this exercise will be permissible in connection with the Act and not with the Notification which was issued years back in 1981. That because of aforesaid amendment wherever the word 'Deputy Commissioner' is found in the Act it may be read as 'Joint Commissioner', but that amendment does not contemplate simultaneous amendment of the term 'Deputy Commissioner' as employed in any Notification issued under Section 15(1). To repeat this contention, Mr. Ramesh, learned Counsel for the revenue has relied upon the aforesaid two Decisions of the Supreme Court, which have taken the view that the statutory order has to be read as part of the Act.
21. In our view, the ratio laid down by these two Decisions cannot be of any avail to Mr. Ramesh, for the revenue for the simple reason that all that those Decisions have said is that once an exercise is authorised by the statute by following the procedure to issue orders and once such orders are issued in exercise of the delegated legislative function contemplated by the Act itself, such orders will have effect as if such exercise was permitted by the Act itself. We are not concerned with any such situation in the present case. A short question for our consideration is when the Notification of 1981 issued by the Commissioner under Section 15(1), specially empowers the Deputy Commissioner of Commercial Taxes (Administration) to exercise powers under Section 15(1), whether the term Deputy Commissioner employed by the said Notification is automatically to be read as Joint Commissioner of Commercial Taxes by virtue of Section 2(3) of the Karnataka Amendment Act 5/93. So far as this question is concerned, the aforesaid Decisions of the Supreme Court cannot assist the learned Counsel for the Revenue.
22. However, Mr. Ramesh, learned Counsel for the Revenue rightly placed reliance on Section 20 of Karnataka General Clauses Act, 1899. The said Section reads as under:
'20. Construction of orders, etc. issued under enactments.-Where, by any enactment, a power to issue any notification, order, scheme, rule, form or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the enactment conferring the power.'
Under Section 15(1) of the Act, the power is conferred on the Commissioner to issue notification. That power is exercised by him in 1981. While exercising that power, he has specially conferred revisional powers under Section 15(1) on Deputy Commissioner of Commercial Taxes (Administration). The expression Deputy Commissioner of Commercial Taxes, must, therefore get the same meaning as in the enactment namely, the Entry Tax Act conferring that power. Under the Entry Tax Act, which conferred this power, by virtue of its amendment by Act 5/93 as per Section 2 Sub-section (3) of the Karnataka Act it has clearly been laid down that wherever the expression Deputy Commissioner is found in the Act, the said words should be read as Joint Commissioner. If in the parent Act the expression Deputy Commissioner is to be read as Joint Commissioner then by virtue of Section 20 of the General Clauses Act even in the notification the expression Deputy Commissioner will have to be read as the expression Joint Commissioner. We do not find anything repugnant in the subject or context to take a different view. Consequently, applying Section 20 of the Karnataka General Clauses Act to the facts of the present case, it must be held that after coming into operation of Karnataka Act 5/93 with effect from 4.2.1993, Notification of 31.7.1981 will have to be read as specially authorising the Joint Commissioner of Commercial Taxes (Administration) to exercise powers conferred under Section 15(1) of the Act in regard to the orders passed by officers subordinate to him in his jurisdiction. Consequently, the order passed by the Joint Commissioner of Commercial Taxes (Administration) on 22.7.1993 cannot be said to have been passed by an unauthorised officer, who is not within the contemplation of the Notification of 31.7.1991. Alternative contention canvassed by Sri Kamath, on this aspect also has, therefore, to be rejected.
22A. Then remains the next question on the aspect of jurisdiction as to whether the Notification issued by the State of Karnataka in exercise of its power under Section 12(1) on 19.1.1993/22.4.1993 has any effect on the revisional proceedings pending before the Joint Commissioner of Commercial Taxes, Bangalore and whether these proceedings stood transferred by virtue of the aforesaid Notification to Additional Commissioner of Commercial Taxes, Bangalore City Zone-1 and consequently, whether the Joint Commissioner could not have passed the order on 22.7.1993.
23. So far as this question is concerned, it must be kept in view that under Section 15(1) as it stood on 22.7.1993, the Legislature has clearly indicated three authorities which would exercise powers under that Section, namely, 1) Commissioner, 2) Additional Commissioner, and 3) Any other Officer specially empowered by the Commissioner. Under the Notification of 1981, Joint Commissioner of Commercial Taxes (Administration) would be said to be an officer specially empowered under Section 15(1) to pass appropriate orders. This third category of specially empowered officer derives its efficacy and existence from the exercise of delegated legislative function by the Commissioner himself and it cannot be touched by any authority exercising delegated functions under any other provisions of the Act. It is in the background of this statutory scheme of Section 15(1) that we have to analyse the scope and ambit of the Notification dated 19.1.1993/22.4.1993. It will be profitable to reproduce the said Notification in extenso at this stage.
'SI.No. 43
NOTIFICATION
No.FD 336 CSE 92(ll), Bangalore, dated
19th January, 1993 SO 399, Karnataka
Gazette, dated 22nd April, 1993
In exercise of the powers conferred by Sub-section (1) of Section 12 of the Karnataka Tax on Entry of Goods Act, 1979 (Karnataka Act 27 of 1979) and in supersession of all previous Notifications/Order issued in this regard the Government of Karnataka hereby empowers the officers specified in column 2 of the Table below with Head quarters specified in column 3 to exercise the powers under Section 15 of the said Act in respect of the dealers falling in the areas specified in column 4 thereof:
SI. No.
Designation of officers
Head Quarters
Areas
1.
Additional Commissioner of Commercial Taxes, Zone-l
Bangalore City
Jurisdiction corresponding to the Joint Commissioner ofCommercial Taxes (Administration) of City Divisions-l & III of Bangalore
2.
Additional Commissioner of Commercial Taxes, Zone-2.
Bangalore City
Jurisdiction corresponding to the Joint Commissioners ofCommercial Taxes (Administration) of City Divisions-l I & IV of Bangaloreand Bangalore Division.
3.
Additional Commissioner Mysore of Commercial Taxes MysoreZone.
Mysore
Jurisdiction corresponding to the Joint Commissioners ofCommercial Taxes (Administration) of Mysore. Division, Malnad Division andMangalore Division.
4.
Additional Commissioner, of Commercial Taxes, DavangereZone.
Davangere
Jurisdiction corresponding to the Joint Commissioners ofCommercial Taxes (Administration) Davangere Division and Gulbarga Division.
5.
Additional Commissioner of Commercial Taxes, BelgaumZone.
Belgaum
Jurisdiction corresponding to the Joint Commissioners ofCommercial taxes (Administration) Belgaum Division and Dharwad Division.
All pending proceedings initiated by authorities other than the Commissioner of Commercial Taxes shall stand transferred to the respective Zonal Additional Commissioners of Commercial Taxes in so far as dealers coming under their jurisdiction and may continue the proceedings from the stage at which the proceedings was left by the previous authority. This shall come into force with immediate effect.'
The said Notification was issued under Section 12(1) of the Act by the State of Karnataka. Section 12 Sub-section (1) as applicable at the relevant time when the impugned order was passed on 22.7.1993 read as under:
'12. The authorities.- (1) The State Government shall, by notification, authorise the officers of the Commercial Taxes Department to exercise the powers and discharge the duties and perform the functions under this Act.'
This provision entitles the State Government to distribute the work by notification with a view to enabling the concerned officers entitled to exercise powers under the Act to exercise their powers and discharge their duties and perform their functions enjoined upon them by the Act. Under Section 15(1), the Legislature has clearly earmarked two such categories of officers namely, the Commissioner and the Additional Commissioner. The third category of specially empowered officer springs into existence by exercise of the delegated legislative powers conferred on the Commissioner himself. Therefore, so far as the third category is concerned, sweep of Section 12(1) would not exfacie cover such category of delegated specially empowered officers. To take any other view would result in enabling the State Government in exercise of its power under Section 12(1) to repeal or to denude of its efficacy the third category of officers contemplated by Section 15(1). Keeping in view this statutory scheme therefore, the scope and ambit of the Notification dated 19.1.1993/22.4.1993 has to be appreciated,
24. It was not in dispute between the parties that prior to the issuance of that Notification originally there was one Joint Commissioner of Commercial Taxes functioning at Bangalore for the entire State and that Joint Commissioner became Additional Commissioner of Commercial Taxes, Bangalore by virtue of Section 2(3) of the Karnataka Amendment Act 5/93. That happened with effect from 4.2.1993. Thus by the time Notification dated 19.1.1993 got gazetted on 22.4.1993 there was already in existence the post of one Additional Commissioner of Commercial Taxes, Bangalore who was to exercise jurisdiction under Section 15 for the entire State. All that the Notification of 22.4.1993 sought to do was to bifurcate the jurisdiction of the sole Additional Commissioner of Commercial Taxes, Bangalore into five Divisional Additional Commissioners mentioned in the Table and each of these Additional Commissioners was thenceforth, required to exercise jurisdiction under Section 15 in his area which corresponded with the area of jurisdiction of Joint Commissioner of Commercial Taxes in the earmarked concerned jurisdictions of these officers as indicated in the Table. It is easy to visualise that prior to the Notification dated 22.4.1994, Additional Commissioner of Commercial Taxes, Bangalore could have taken in revision by virtue of Section 15(1) any order passed by his subordinate officer functioning at any place in the State, say at Mysore, Davangere or Belgaum. But after the Notification on 22,4.1993 Additional Commissioner of Commercial Taxes, Bangalore got his jurisdiction under Section 15(1) circumscribed by making it correspond to the jurisdiction of the concerned Joint Commissioner of Commercial Taxes (Administration) of the City Division-l & III of Bangalore as medicated in the Table of the Notification. Consequently, thereafter, if the order of a subordinate officer functioning at Mysore was to be taken in revision under Section 15(1) that revision would lie to Additional Commissioner of Commercial Taxes, Mysore and not to Additional Commissioner, Bangalore. Thus distribution of work and powers and functions under Section 12(1) amongst the statutory officers indicated by Section 15 was done by the State under Section 12(1). That Notification, therefore, had nothing to do with the exercise of revisional powers by the specially empowered officer who was delegated power of the Commissioner and who functioned as one of the third category of officers indicated by Section 15(1). It is in that light that the penultimate paragraph of the Notification is to be appreciated. It has enjoined that all proceedings initiated by the authorities other than the Commissioner of Commercial Taxes under Section 15 would stand transferred to the respective Zonal Additional Commissioners of Commercial Taxes in so far as dealers coming in their jurisdiction were concerned. It has to be kept in view that prior to the Notification on 19.1.1993/22.4.1993, there were statutory authorities functioning under Section 15, as under:
Originally there was a Joint Commissioner of Commercial Taxes for the entire State. He could have initiated proceedings under Section 15(1) in exercise of his own powers vested in him under Section 15(1) by Legislature itself. The designation of the said officer got changed into that of Joint Commissioner by Section 2(3) of the Karnataka Act 5/93 with effect from 4.2.1993. After 4.2.1993, therefore the erstwhile Joint Commissioner who became Additional Commissioner of Commercial Taxes might have also initiated proceedings under Section 15(1). Any such proceedings initiated prior to 22.4.1993 either by Joint Commissioner when such officer was functioning or by Additional Commissioner on account of redesignation of such officer by Karnataka Act 5/93 were to stand transferred to the respective Zonal Additional Commissioners of Commercial Taxes and for achieving that result, the proceedings initiated by Commissioner himself under Section 15(1) were not to be touched. If that is so, the proceedings initiated and pending before the delegate of the Commissioner would 'also naturally not get touched and could not be covered by the sweep of the penultimate paragraph of the said Notification. The delegate of Commissioner exercises delegated powers of Commissioner himself under Section 15(1) of the Act Mr. Kamath, learned Counsel for the appellant submitted that if that was so, the word 'authorities' which is in plural would not have been used in the Notification. As we have already seen earlier, there was possibility of pending proceedings initiated not only by only one authority Additional Commissioner but even by the erstwhile Joint Commissioner. It is in order to transfer all such pending proceedings initiated either by the erstwhile Joint Commissioner or by the Additional Commissioner, to the concerned Additional Commissioners that the word 'authorities' in plural has been employed in the penultimate paragraph of the Notification. But that has nothing to do with the authorities specially empowered by the Commissioner under Section 15(1) which would form a distinct and separate third category. If the view as canvassed by Mr. Kamath is accepted and if it is held that sweep of the penultimate paragraph of the Notification dated 19.1.1993/22.4.1993 covered even the pending proceedings before the specially empowered officers under Section 15(1) then the entire class of specially empowered officers as contemplated by the Legislature for exercising powers under Section 15(1) would stand effaced. It would amount to repealing the entire third category of officers contemplated by the Legislature while enacting Section 15(1). A delegate of Legislature namely, the State Government exercising powers under Section 12(1) cannot be said to have been empowered to effect such a repeal of a statutory provision which could be done only by the parent Legislature. The contention of Mr. Kamath, learned Counsel for appellant, to that effect, therefore, cannot be countenanced on the scheme of Section 12(1) and Section 15(1). Therefore, the penultimate paragraph of the Notification dated 19-1-1993/22-4-1993 wilt have to be read to mean all proceedings initiated by statutory authorities under Section 15 other than the Commissioner or his delegate shall stand transferred to the respective Zonal Additional Commissioners and that would not cover proceedings pending before authorities specially empowered by the Commissioner himself. Once that view is taken, the result is obvious. The revisional proceedings pending before the Joint Commissioner of Commercial Taxes (Administration) on 22-4-1993 remained intact and untouched by the sweep of the said Notification dated 22-4-1993 and could be taken to their logical end by the Joint Commissioner of Commercial Taxes, who was a specially empowered officer as per the Notification of 1981 which held the field till he passed the impugned order dated 22-7-1993.
24-A. In this connection, one submission of Mr. Kamath, learned Counsel for the appellant is required to be noted. He submitted that Section 12(1) confers the prerogative to the State to distribute the work of any officer of Commercial Taxes Department. That as per Section 12(3) if there are more than one officer, so earmarked the Commissioner can distribute or allocate the work amongst them. This according to Sri Kamath, clearly indicated that once Notification is issued by the State Government under Section 12(1), it would over-ride the earlier delegation of the powers by the Commissioner under third part of Section 15(1), to any other officer. It is not possible to agree with this contention for the obvious reason that as discussed earlier, Section 12(1) Notification has a limited scope and it cannot cut across the statutory power conferred on the Commissioner by the Legislature itself under Section 15 of the Act to specially empower any officer of his choice to exercise the powers under Section 15(1) of the Act.
The aforesaid last contention of Mr. Kamath, learned Counsel for the appellant on jurisdictional aspect, therefore, also is found to be without any substance and has to be rejected. Consequently, Point No. I will have to be answered against the appellant and in favour of the respondent by holding that the Joint Commissioner of Commercial Taxes (Administration), Bangalore, who passed the impugned order dated 22-7-1993 in these three cases had jurisdiction to exercise his powers under Section 15(1) of the Act.
25. That takes us to the consideration of the merits of the case as covered by Point No. ll
POINT NO. II: So far as this point is concerned let us first see what was done by the Assessing Authority. The periods concerning three assessment years are on the anvil of scrutiny. It will be convenient to deal with these periods one after the other.
26. In ET. & TA.10 as noted earlier the period of assessment is 16-11-821o 3-11-83. In the return filed by the appellant- assessee for these years he showed total turnover in Form IV as Rs. 91,44,519.21 and he claimed total exemption on this turn-over. The assessing authority viz., Commercial Tax Officer, XXVI Circle, Bangalore, by his order dated 4-8-86 observed that he verified at random the books of accounts, the purchase bills produced. That it was seen that the assessee effected purchases locally outside Corporation limit and also within the Corporation limit and also claimed exemption of the same. The assessee had not added cost of transportation charges for transporting from the place of roller to Bangalore in the taxable value. Such cost would form part of the cost price on which the dealer is liable to pay tax. In the absence of separate accounts such charges are estimated at 1%. The Assessing Authority finally assessed the dealer under Section 5(3) as under:
'Taxablepurchases as per return
Rs. 2,78,402-50AddFreight:
2,784-00
2,81,186-50ExemptionTurnover allowed
88,66,116.71Grossturnover
Rs.91, 47,303-21
Nature of goods
Valuedetermined
Rate oftax
Taxlevied
Iron& Steel
2,81,186-00
2%
1,09,427.50
2,188.56
1%
1,71,759-00
1,717.59
Tax paid Balance
Rs.
Rs.
27. So far as TA & (ET) 11/94 is concerned it refers to assessment year 1-4-1982 to 15-11-1982. In the return filed for the aforesaid period the assessee returned the gross value of the turnover at Rs. 54,88,693.08. He claimed exemption on the turnover amounting to Rs. 53,27,860.31, the taxable turnover according to the return was Rs. 1,60,832.77. The Assessing Authority accepted the said return but added to the taxable turn-over freight charges of Rs. 1,608.33 and computed the taxable turnover and exempted turnover as under:
Taxable purchases as per return
1,60,832-77Add: Freight
1,608-33
1,62,441-10Exemption turnover allowed
53,27,860-31Gross turnover
Rs.54,90,301-41
Natureof goods
Value determined
Rate of tax
Tax levied
Iron & Steel
1,62,441-10
2%
Rs. 3,249-00
Taxpaid
Rs.
Balance
Rs.
28. In TA(ET)12/94 the period of assessment is from 4-11-83 to 23-10-84. As per the return the assessee had shown the gross value of the turnover at Rs. 1,88,78,501-64. He had claimed exemption on the turnover amounting to Rs. 1,77,60,439.54 and the taxable value of the turnover was written at Rs. 11,18,082.10. With slight modification assessing authority accepted the exempted turnover at Rs. 1,68,56,733.29 and computed the taxable turnover and the return of tax as under:
Taxable purchases as per return
Rs.20,21,788.35Add:Freight
Rs. 20,218.65
20,42,007.00Exemption turnover allowed
1,68,56,733.29Gross turnover
1,88,98,740.29
Natureof goods
Valuedetermined
Rate oftax
Taxlevied
Iron & Steel
20,42,007-00
1%
Rs.20,420-00
Total paid
Balance
Rs.
29. A mere look at the assessment order shows that the assessing authority almost automatically accepted the case of the assessee, that the majority of the turnover comprised of goods which the assessee had purchased from local dealers, meaning thereby they were tax suffered goods imported into the local limits by the sellers as registered dealers from whom he had purchased these goods and it was that case of the assessee which was accepted by the assessing authority and accordingly the exempted turnover was allowed for the respective years. These orders of the assessing authority were sought to be revised by the then Deputy Commissioner of Commercial Taxes on the ground that there was no evidence produced by assessee on record to show that the goods which were alleged to have been purchased locally as tax suffered goods, were locally purchased by the assessee from local dealers and therefore computation of exempted turnover as granted by the assessing authority had resulted in the assessing authority passing an illegal order prejudicial to the interest of the Government revenue.
30. In the light of the aforesaid assessment orders and the show cause notices seeking to revise them, it was incumbent on the assessee to point out to the Revisional Authority that the extent of taxable turnover on which he claimed exemption in the respective years comprised of goods which he had purchased during the relevant years from the local registered dealers who had paid the tax on these goods, meaning thereby they were already tax suffered goods when they came to the hands of the assessee. In order to justify this stand and to get the orders of the assessing authority confirmed by the Revisional Authority, the aforesaid type of evidence was required to be produced by the assessee before the Revisional Authority. That is precisely for the purpose that in reply to first show-cause notices on 22-7-89, the assessee's Chartered Accountant by reply dated 31-7-89 requested two months time to produce Form No. 30 to show that the local dealers from who he had purchased these goods during the relevant years were tax suffered goods and the selling dealers had paid the tax. This stand obviously implied the assertion that the assessee had himself not caused the entry of goods in the local area but the local dealers from whom he had purchased these goods had caused the entry of these goods within the local limits and therefore such local dealers, sellers of these goods, were liable to pay Entry Tax and they had actually paid the same and therefore this turnover has got exempted from the further payment of tax in the hands of assessee/purchaser. It is curious to note that not only two months time elapsed but at last 2 1/2 year's time elapsed but nothing happened and the assessee did not produce Form-30 even after such a long period available to him. Under these circumstances the Revisional Authority issued 2nd notice on 11-3-92. It was replied to by assessee on 14-3-92. The reply makes an interesting reading. Now the assessee gave a complete go-by to the earlier theory that he has purchased tax suffered goods from local dealers who in turn had paid the tax on these goods. He gave us this stand presumably because despite the lapse of two years from the date of first notice 22-7-89 he could not get Form No. 30 from local dealers who had allegedly sold these goods to assessee and having failed on that front the assessee took a somersault in reply to second show-cause notice dated 11-3-92. The reply is short and laconic consisting of five small paragraphs. It is profitable to extract the same in extenso at this stage:
'(1) Your goodself have stated that stocks have been lifted from M/s. Tata Iron & Steel co. Ltd., and M/s. Steel Authority of India shall be true and correct, whereas the matter is relating to 1981-82, 1982-83 & 1983-84, which is about eight to ten years old.
(2) Referring the matter to our records has become difficult for us the reasons that the staff keeps on changing and records have been handled by more staff members.
(3) Your goodself have stated that the goods purchased are from the Company who have their godown outside the Corporation Limits as such the materials lifted shall be liable to entry tax at our hands.
Whereas at the time of verification of books of accounts it was informed that the goods are purchased from a firm having its registered office at M.G. Road, Bangalore, which falls within the Corporation Limits, and the exemption on such purchases was allowed and assessment was completed in 1986.
Now after a lapse of six years it is being informed that the entry tax is to be paid by us. This is a burden on the firm.
(4) However, it is learnt that if the material is despatched from godowns situated outside Corporation limits the liability of paying entry tax is to be borne by the person who has taken delivery of the goods.
(5) In our case also the godown was situated for storing the goods at Whitefield Road, Bangalore and the goods have been delivered from our registered godown at Whitefield which falls outside Corporation limits.
Under the circumstances it is requested, to consider the explanation furnished to allow the exemption of entry tax as per your interpretation.'
31. In paragraph 4 of the reply the assesses clearly admits that if the material is despatched from godowns situated outside Corporation limits the liability of paying Entry Tax is to be borne by the person who has taken delivery of the goods and then in para 5 of the reply it is stated that, in assessee's case the godown was situated at Whitefield Road, Bangalore and the goods have been delivered from his registered godown at Whitefield which falls outside Corporation limits. This somersault in the stand shows that by 11-3-92 the assessee came forward with entirely a new case that he had purchased goods from outside the local limits and also had stored them in his godown falling outside Corporation limits and directly sold them to others and those other persons, if they had effected entry of the goods in Corporation limits, would be liable to pay Entry Tax. It is to be kept in view that such a case was never, pleaded before the assessing authority or even in the reply. First show cause notice given 2 1/2 years back on 31 -7-89 as well as in reply to first show-cause notice a clear case was tried to be made out by the assessee that he himself had locally purchased the goods, but these goods were purchased from local dealers who in their own turn had imported those goods within the Municipal limits and therefore they had paid the tax and goods were tax suffered goods. Now, the assessee completely turned round in his defence and submitted in reply to second show-cause notice that he has purchased goods outside the Municipal limits, stored them in the godown outside the Municipal limits and had not caused their entries within the local limits. But even that apart there was no basis whatsoever for such a new case. Before the assessing authority no exemption was claimed on this ground. He had relied on purchase bills only alleging that he had purchased these goods from local dealers. No sale bills to outsiders were purchased as such was not his case before the assessing authority. Even that apart, the assessee led no evidence before the Revisional Authority even in support of his alternative case. So far as his main and original case was concerned, he could not produce Form No. 30 even after a gap of 2 1/2 years from the reply to the first show-cause notice as seen earlier. Again the matter dragged on for more than an year and 3rd show-cause notice came to be issued to assessee by the Revisional Authority on 14-7-93. Reply to that notice dated 21-7-93 is extremely laconic and cryptic. The assessee stated in the said reply that he had already entered into the correspondence with the Revisional Authorities earlier and the Revisional Authority may proceed accordingly. Thus, in substance assessee had nothing more to say than what he had stated in his earlier two replies dated 31-7-89 and 14-5-92.
32. Under these circumstances the Revisional Authority had to decide as to whether the assessing authority was legally justified in accepting the bald assertion on the part of the assessee that the huge amount of turn-over returned for the concerned 3 assessment years was exempt from payment of Entry Tax as it represented tax suffered goods purchased by the assessee from local dealers who themselves had caused the entry of these goods within the local limits. It is to be kept in view that under Section 28(A) burden of proof is on the assessee, to prove that any transaction of his by which he had taken delivery of goods was not liable to Entry Tax. Section 28(A) as it operated at the time of 1 at and 2nd notices read as under:-
'28-A: Burden of proof:- (1) For purposes of assessment of tax under this Act, the burden of proving that goods brought into or caused to be brought into a local area or taken delivery of by a dealer, is not liable to tax under this Act shall be on such dealer.
(2) Where a dealer furnishes, issues or produces bill of sale, voucher, the declaration, certificate or any other document which he knows or has reason to believe to be false with a view to support or make any claim that he or any other dealer is not liable to be taxed under this Act, the assessing authority shall on detecting such furnishing or issue or production, direct the dealer furnishing, issuing or producing such a bill of sale, voucher, the declaration, the certificate or other documents to pay as penalty.'
At the time of impugned Judgment Section 28(A)(1) also reflected the same legislative intent, Section 28(A)(1) in the amended form read as under:-
'Section 28(A)(1) For purposes of assessment of tax under this Act, the burden of proving that goods brought into or caused to be brought into a local area or taken delivery of by a dealer, is not liable to tax under this Act shall be on such dealer.'
33. It is obvious therefore, it was for the assessee to point out before the assessing authority in the first instance and also before the Revisional Authority, that the alleged exempted turnover as returned by him in his returns represented goods which were either not brought or caused to be brought by him into the local area or the goods delivered to him, were not liable to be taxed. It was for the assessee to point out that these goods on which exemption was claimed from payment of Entry Tax were either purchased from local dealers who has caused entry of these goods in the local limits and who had paid tax on them, or alternatively the assessee had not brought these goods within the local limits at any time during the relevant assessment years. No such evidence was lead by the assessee either before the assessing authority or before the Revisional Authority. Hence, he failed to discharge the burden placed on him under Section 28(A) of the Act. Despite that legal position, the assessing authority straightaway accepted the case of assessee in this behalf viz., he has effected local purchase of goods from dealers who had paid tax on these goods for which Form No. 30 which was sought to be produced by his Chartered Accountant could not see the light of the day on the record of the case. Thus, assessing authority's orders involved an apparent error of law in as much as the assessing authority had completely ignored legal effect of Section 28(A) of the Act and had accepted the word of the assessee on its face value. It was mere ipsi dixit. Under these circumstances no fault could be found with the order of the Revisional Authority in revising these orders of the assessing authority.
34. The Revisional Authority has observed that the assessee had purchased goods from dealers who were situated outside Corporation limit and had caused the entry of these goods into local area, that was clearly liable to Entry Tax Act, 1979. It was found in the instant case the assessee had caused entry of goods into local area and therefore he is liable to pay Entry Tax. That the assessee had failed to produce any material evidence about, who had caused entry of goods into local area, if he was somebody other than the assessee. This was observed presumably keeping in view Section 28(A) of the Act as aforesaid. Accordingly Revisional Authority revised the assessment orders and computed the taxable turnover and tax payable thereof for relevant years as under. In TE (ET) 10/94 for the period of assessment from 16-11-82 to 3-11-83, the Revisional Authority computed the taxable turnover and the tax as under:
T.O.
ROT
TAX
1,
Purchases within the State but outside the Corporationlimits from 16-11-82 to 31 -3-83.
53,41, 350/-
2%
1,06,827.00
2.
Purchase within the State but outside the Corporationlimits from 1-4-83 to 3-1 1-83.
30,83,259/
1%
30,832.00
3.
Local Purchases not supported by evidences for havingsuffered tax at earlier stages
7,22,694/-
1%
7,226.00
Total:91,47,303/-
1,44,885.00
In TA(ET)11/94 for the period from 1-4-1982 to 15-11-82, Revisional Authority computed the taxable turnover and the tax as under :
T.O.
ROT
TAX
1.
Interstate purchases of Iron and Steel
1,60,834.00
2%
3,216.68
2.
Purchase within the State but outside the Corporationlimits
46,40,438.00
2%
92,908.76
3.
Local purchases not supported by evidences for havingsuffered tax at earlier stages.
6,87,430.00
2%
13,748.60
Total:54,88,694.00
1,09,774.04
In TA(ET) 12/94 for the period from 4-11-83 to 23-10-84, Revisional Authority computed the taxable turnover and the tax as under :
T.O.
ROT
TAX
1.
Interstate purchases
11,18,082/-
1%
11,181-00
2.
Purchase within the State but outside the Corporationlimits.
1 58,61 ,858/-
1%
1,58,618-00
3.
Local purchases not supported by evidences for havingsuffered tax at earlier stages.
18,98,562/-
1%
18,956.00
Total:188,78,502/-
1,88,755.00
We see no infirmity in these orders.
35. Before parting with the discussion on this Point we may mention certain contentions vehemently canvassed by Mr. Kamath for the appellant. Firstly, he submitted that the reply given by the Chartered Accountant on 31-7-89 is totally unauthorised as there is nothing to show that he has filed his Power to appear for the appellant in the Revisional Proceedings or that he was authorised by the appellant to submit the reply. This contentions cannot be accepted for obvious reasons. Firstly, in the reply dated 31 -7-89 it is clearly stated by Chartered Accountant that he was submitting the reply under instructions from the client-the appellant. Secondly, such replies were filed in connection with the show-cause notices for the concerned 3 years and he has mentioned the details of the show-cause notices. This would not have been available to the Chartered Accountant but for the fact that the assessee must have placed these notices before him for doing the needful. Even in the reply to the second show-cause notice given by the assessee himself on 14-5-92, he does not whisper about such allegation against this Chartered Accountant. However, Mr. Kamath submitted that he never knew about such reply being on record at that time. It is difficult to accept this contention. But even that apart at last in the SMR orders challenged in these Appeals there is clearly a reference to the first reply given by the appellant's Chartered Accountant. Even thereafter when these appeal memos are drafted there is no whisper about this contention. Even otherwise the reply dated 31-7-89 is just in consonance with the assessment orders which granted exemption to the turnover which according to the appellant was purchased from local dealers and when show-cause notice was issued under Section 15(1) for showing cause why the same should not be revised, it would be quite legitimate for a party or his representative to urge that given sometime he would produce Form No. 30 from the concerned dealers who had sold the goods to the appellant. It is also to be noted that it is not even alleged that uptill now at any time any complaint about professional misconduct of the said Chartered Accountant is lodged by the Assessee before the concerned authorities. For all these reasons this contention cannot be accepted. Mr. Kamath, then filed an application I.A.3 in these Appeals to permit him to lead additional evidence by submitting certain sale bills under which he had sold iron goods to out-State purchasers. This application cannot be granted for obvious reasons. Firstly, nowhere before the Assessing Authority the assessee had contended that the disputed turnover represented goods which were purchased by him outside the Municipal limits and were stored by him in his own godown outside the Municipal limits and then from there he had directly sold them to outstation purchasers, meaning thereby these goods never entered Municipal limits attracting the charge under Entry Tax Act. On the contrary his definite case before the assessing authority was that he himself had purchased these goods after they entered local Municipal limits of Bangalore and as these purchases were made from local dealers they were tax suffered goods. Thus, the IA for additional evidence seeks to introduce evidence on a plea which was never put forward before assessing authority as well as Revisional Authority, save an except vaguely stating in the reply to second show-cause notice that he had stored goods after purchase in godowns situated outside Municipal limits. It is clearly an afterthought as discussed by us earlier. On such an afterthought additional evidence cannot be permitted to be led at such a belated stage. It is also pertinent to note that no one prevented the appellant from producing this evidence before the assessing authority and pleading such a case. For reasons best known to him he did not do so. It is also in this connection worth noting that in his second reply dated 14-5-92 before the Revisional Authority the appellant clearly stated that there was no evidence available to him and cannot be traced out as the matter was very old and his staff went on changing. If that is so, whatever sale bills are sought to be produced before us would become of a doubtful nature and cannot have any relevance for resolving the real controversy in the present proceeding.
36. For all these reasons this application I.A.III is rejected. Mr. Kamath, lastly submitted that there were Form No. 39 produced before assessing authority which showed that the assessee had sold goods from his Depot outside municipal limits. This submission also cannot be accepted for the reasons as aforesaid as the assessee had nowhere even whispered before assessing authority, that the disputed turnover was of goods which he had purchased outside Municipal limits, stored them outside Municipal limits and had directly sold them to outside purchasers. Such a material having a reference to a plea which was never put forward for exemption of the disputed turnover cannot be of any assistance to the appellant. It is also pertinent to note that if Form No. 39 was available with the assessing authority and if it was relied upon by the assessee in support of his case it would have found a reference in the assessment order. No such reference to Form No. 39, is found in the assessment orders. Consequently, even this effort made by Mr. Kamath to rely on Form 39 is also of no avail to him.
37. In our view the aforesaid computation of taxable turnover as well as the tax payable thereon as arrived at by Revisional Authority for the relevant years is perfectly justified on facts and is legal and proper. It calls for no interference in these Appeals.
38. In the result Appeals fail and are dismissed. No order as to costs in each of them.