M/S. Gundu Akkiraju and Suryanarayanamurthy, Contractors, Shri Venkateswara Uma Parameswara Boiled and Raw Rice Mill Undi Represented by G. Seshavatharam, Partner Vs. the Board of Revenue (Commercial Taxes) Andhra Pradesh, Hyderabad. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - aggrieved by that assessment made at the rate of 2 per cent the appellant preferred an appeal unsuccessfully to the assistant commissioner of commercial taxes.s. obul reddi c.j. - the question that is raised and arises in this special appeal is whether the order of the commissioner of commercial taxes is in contravention of section 20, sub-section (2-a) of the andhra pradesh general sales tax act, hereinafter referred to as the act.2. the facts necessary for determining the question involved are these. the appellant is a firm of contractors and dealers in paddy and rice. its turnover for the assessment year 1963-64 was rupees 5,62,350.08. on that turnover, the appellant was assessed to tax at the rate of 2 per cent. aggrieved by that assessment made at the rate of 2 per cent the appellant preferred an appeal unsuccessfully to the assistant commissioner of commercial taxes. on further appeal to the tribunal, the tribunal remitted the matter to the assessing authority to determine the rate of tax having regard to the decision of the court in state of andhra pradesh vs. oruganti venkateswarlu and brothers, (1967) 20 stc 340 (andh. pra). on remand, the assessing authority assessed the appellant on the turnover of rupees 5,39137.13 ps. at the rate of 1 1/4 per cent. on appeal to the accordance with the directions of the tribunal, should be 1 per cent and not 1 1/4 per cent and therefore allowed the appeal to that extent. the commissioner of commercial taxes then suo motu took up the revision after issuing a notice to the appellant. the commissioner came to the conclusion that the question whether the turnover should be assessed to tax at the rate specified in section 5-a was not in issue before the tribunal, and therefore the assistant commissioner erred in holding that the assessing authority should have assessed the appellant on the turnover at the rate of 1 per cent instead of 1 1/4 per cent. it is in the view that the rate of tax as payable under section 5-a was, not in issue before the tribunal that the commissioner taxes revised the order of the assistant commissioner and directed assessment at the rate of 1 1/4 per cent on the turnover of rs. 5,39,137.13 ps.3. mr. t. ramchandra rao, learned council for the appellant relying upon section 20(2-a) of the act, contended that the commissioner acted without jurisdiction in revising the order of the assistant commissioner based on the judgment of the tribunal. according to him, the only question on raised before the tribunal was with regard to the rate of tax and when the tribunal had given a finding on that question, it is not open to the commissioner to revise the order of the assistant commissioner made in accordance with the direction of the tribunals judgment.4. section 20 empowers the board of revenue to suo motu examine the record of any order passed by any authority subordinate to it for the purpose of satisfying as to the legality or propriety of such order passed by the subordinate authority. sub-section (2-a) places a restriction on the exercise of the power by the board of revenue under sub-sections (1) and (2) of section 20. this sub-section (2-a) reads :-20. (2-a) 'the power under sub-section (1) of sub-section (2) shall not be exercised by the authority specified therein in respect of any issue or question, which was the subject-matter of an appeal before, or which was decided on appeal by the appellate tribunal under section 21'.therefore, what has to be seen is whether the commissioner has revised the finding recorded by the tribunal in respect of an issue or question which was raised before the tribunal and decided by it in an appeal. the tribunal heard a batch of five appeals and pronounced a common order. the common question involved in those five appeals has been stated by the tribunal in the opening sentence of its order thus.'those five appeals are disposed of by a common because they involve the common question relating to the rate of tax on rice which was sold in the course of inter-state treate or commerce. in all these appeals the rate of tax is disputed and it is argued that it should not be 2% but 1% because it was obtained from paddy which had suffered tax already.'the tribunal held that the rate of tax should be 1% and not 2% in view of the decision of this court in oruganti venkateswarlus case (1967) 20 stc 340 (andh. pra.). the question raised was whether under section 5(2) (a) read with item 66 (a) of the first schedule, the tax to be levied should be 1% or 2%. on a reading of the said provisions, jaganmohan reddy, c.j. (as he than was) sitting with m. krishna rao j. held that by virtue of section 8(2-a) of the central sales tax act read with item 66(b) of the first schedule to the act, inter-state sale of rice obtained from paddy that had already suffered tax at 3% was eligible to tax at 1% and not at 2%. the learned judges were not concerned with the rate of tax leviable under section 5-a of the act. therefore, it cannot be said that the decision rendered by this court in oruganti venkateswarlus case (supra) applies to cases of turnover referred to in section 5-a of the act. this section is in these terms :-5-a 'levy of additional tax on turnover. every dealer who is liable to pay tax under section 5 shall in addition to the tax payable under that section, pay for each year a tax at the rate of one fourth paise on every of his turnover liable to tax, if his total turnover for that year is rupees three lakhs or more'.the turnover of the appellant is more than the minimum turnover prescribed by this section. section 5(2) (a) says that tax shall be levied in the case of goods mentioned in the first schedule at the rates and only at the point of the sale specified as applicable thereto effected in the state by the dealer selling them, on his turnover of sales in each year relating to such goods irrespective of the quantum of turnover. under section 5(2) tax is leviable at the rates specified in item 66(b) of the first schedule in respect of rice obtained from paddy that has met tax under the act. the rate of tax is one paise in a rupee. rice relating to the turnover in question was obtained from paddy. but the rate of tax at one paise in the rupee is applicable only to the turnovers below rupees three lakhs mentioned in section 5-a. where the total turnover exceeds rupees three lakhs, section 5-a is attracted and additional tax at the rate of one fourth paise on every rupee of the assessees turnover has to be lived. a reading of the tribunal would show that there was no issue or question as to the rate of tax payable by an assessee whose annual turnover exceeded rupees three lakhs. the decision in oruganti venkateswarlus case (supra was referred to by the tribunal only for guidance in respect of cases other than those coming within the purview of section 5-a. therefore, when the applicability commissioner of commercial taxes had exceeded his jurisdiction in exercising his powers under section 20(1) of the act.5. we, therefore confirm the impugned order of the commissioner of commercial taxes and dismiss this appeal with costs.