Arunachala Logistic (P) Ltd. Vs. Deputy Commercial Tax Officer and anr. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 3. we do not propose to express any opinion so far as the contention raised by the petitioner before us as well as the revisional authority.orderb. sudershan reddy, j.1. we have heard the learned counsel for the petitioner and the special standing counsel for the department and at their request the matter is taken up for final disposal at the admission stage.2. rule nisithe petitioner is registered under the provisions of the andhra pradesh tax on professions, trades, callings and employments act, 1987 (for short 'the act') on the rolls of the deputy commercial tax officer, srinagar colony, hyderabad. the assessing authority having finalised the assessment of profession tax for the year 2001-02, passed the orders, dated march 31, 2005, requiring the petitioner to pay the profession tax at rs. 750 per annum on each of the vehicle numbering 88 owned by the petitioner. the authority accordingly required the petitioner to pay the profession tax at the rate of rs. 750 per vehicle. the petitioner being aggrieved by the same, preferred revision under section 16 of the act challenging the correctness of the assessment order. the petitioner, inter alia, contended before the revisional authority that the assessing officer committed an error and imposed tax at the rate of rs. 750 per vehicle, whereas the law requires and enables the authority to assess the tax payable by person and not on the vehicle.3. we do not propose to express any opinion so far as the contention raised by the petitioner before us as well as the revisional authority. the revisional authority disposed of the revision petition vide order, dated august 17, 2005, which is impugned before us.4. sri p. srinivas reddy, learned counsel appearing for the petitioner, submits that the view taken by the revisional authority dismissing the revision petition filed by the petitioner herein suffers from incurable legal infirmities being contrary to section 16 of the act. we find substantial force in the submission made by the learned counsel for the petitioner. it is no doubt true, as has been observed by the revisional authority that an appeal under section 15(1) of the act lies to the appellate authority against any order passed by any authority under the provisions of the act not being an order passed under sub-section (3) of section 8 of the act within 30 days from the date on which the order was served on him. admittedly, the impugned order is not the one passed under sub-section (3) of section 8 of the act, therefore an appeal may lie against the impugned order, but it is required to notice section 16 of the act which confers jurisdiction upon the commissioner either suo motu or on an application made to him, to call for and examine the record of the assessing authority, as the case may be, of the appellate authority in respect of any proceeding to satisfy himself as to the regularity of any such proceeding or the correctness, legality or propriety of any decision. that a plain reading of section 16 of the act discloses that a revision petition lies even as against the order passed by the assessing authority. it was open to the petitioner either to prefer an appeal or revision before the revisional authority. the petitioner had chosen to prefer revision instead of appeal, which ought to have been considered on its own merits, but the revisional authority dismissed the revision petition preferred by the petitioner on the ground of availability of alternative remedy.5. we find it difficult to sustain the order which is contrary to section 16 of the act which provides for filing of revision petition even against the order of the assessing authority. in such view of the matter, we hold that the revisional authority is bound to decide the revision on merits.6. for the aforesaid reasons, the impugned order is set aside. the revision petition filed by the petitioner shall revive to its file for its hearing and disposal on merits, in accordance with law by the revisional authority.7. the revision petition shall be disposed of as expeditiously as possible preferably within a period of eight weeks from the date of receipt of a copy of this order. there shall be an order accordingly.8. it is needless to direct that pending the revision petition, no coercive steps as against the petitioner shall be taken.the writ petition is accordingly allowed without any order as to costs.that rule nisi has been made absolute.

Judgment:
ORDER

B. Sudershan Reddy, J.

1. We have heard the learned Counsel for the petitioner and the Special Standing Counsel for the Department and at their request the matter is taken up for final disposal at the admission stage.

2. Rule nisi

The petitioner is registered under the provisions of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 (for short 'the Act') on the rolls of the Deputy Commercial Tax Officer, Srinagar Colony, Hyderabad. The assessing authority having finalised the assessment of profession tax for the year 2001-02, passed the orders, dated March 31, 2005, requiring the petitioner to pay the profession tax at Rs. 750 per annum on each of the vehicle numbering 88 owned by the petitioner. The authority accordingly required the petitioner to pay the profession tax at the rate of Rs. 750 per vehicle. The petitioner being aggrieved by the same, preferred revision under Section 16 of the Act challenging the correctness of the assessment order. The petitioner, inter alia, contended before the revisional authority that the assessing officer committed an error and imposed tax at the rate of Rs. 750 per vehicle, whereas the law requires and enables the authority to assess the tax payable by person and not on the vehicle.

3. We do not propose to express any opinion so far as the contention raised by the petitioner before us as well as the revisional authority. The revisional authority disposed of the revision petition vide order, dated August 17, 2005, which is impugned before us.

4. Sri P. Srinivas Reddy, learned Counsel appearing for the petitioner, submits that the view taken by the revisional authority dismissing the revision petition filed by the petitioner herein suffers from incurable legal infirmities being contrary to Section 16 of the Act. We find substantial force in the submission made by the learned Counsel for the petitioner. It is no doubt true, as has been observed by the revisional authority that an appeal under Section 15(1) of the Act lies to the appellate authority against any order passed by any authority under the provisions of the Act not being an order passed under Sub-section (3) of Section 8 of the Act within 30 days from the date on which the order was served on him. Admittedly, the impugned order is not the one passed under Sub-section (3) of Section 8 of the Act, therefore an appeal may lie against the impugned order, but it is required to notice Section 16 of the Act which confers jurisdiction upon the Commissioner either suo motu or on an application made to him, to call for and examine the record of the assessing authority, as the case may be, of the appellate authority in respect of any proceeding to satisfy himself as to the regularity of any such proceeding or the correctness, legality or propriety of any decision. That a plain reading of Section 16 of the Act discloses that a revision petition lies even as against the order passed by the assessing authority. It was open to the petitioner either to prefer an appeal or revision before the revisional authority. The petitioner had chosen to prefer revision instead of appeal, which ought to have been considered on its own merits, but the revisional authority dismissed the revision petition preferred by the petitioner on the ground of availability of alternative remedy.

5. We find it difficult to sustain the order which is contrary to Section 16 of the Act which provides for filing of revision petition even against the order of the assessing authority. In such view of the matter, we hold that the revisional authority is bound to decide the revision on merits.

6. For the aforesaid reasons, the impugned order is set aside. The revision petition filed by the petitioner shall revive to its file for its hearing and disposal on merits, in accordance with law by the revisional authority.

7. The revision petition shall be disposed of as expeditiously as possible preferably within a period of eight weeks from the date of receipt of a copy of this order. There shall be an order accordingly.

8. It is needless to direct that pending the revision petition, no coercive steps as against the petitioner shall be taken.

The writ petition is accordingly allowed without any order as to costs.

That Rule Nisi has been made absolute.