Important Points
1. Failure to avail appellate remedy will not prevent an assessee from invoking the suo motu jurisdiction of the Deputy Commissioner under Section 32 of the Tamil Nadu General Sales Tax Act.
2. Where the assessee filed petition u/s 32 of the Tamil Nadu General Sales Tax Act within four years of the assessment order, merely because the Deputy Commissioner passed order on that application after the expiry of four years, it could not be said that the revision was barred by limitation.

Order

The short facts leading to this appeal are as follows: The respondent-assessee was assessed to sales tax by the Assessment Officer. After some time, he invoked the suo motu powers of the Deputy Commissioner under Section 32 of the Tamil Nadu General Sales Tax Act (for short “the Act”) questioning the correctness of the assessment. The Deputy Commissioner dismissed the petition in limine. The assessee filed a writ petition challenging the said order in the High Court. The High Court held that the Deputy Commissioner should entertain the revision and decide it on its merits. The matter was thus remanded.

2. After remand, the Deputy Commissioner once again dismissed the petition on merits. The assessee filed an appeal to the Tribunal which went into the merits and found that the assessee’s contention was correct. Consequently, the appeal was allowed. The said judgment of the Tribunal was challenged by the appellant in revision under the Act.

3. In the revision petition, following three contentions were urged: (1) that the time limit of four years for exercising the suo motu powers of the Deputy Commissioner under Section 32 had expired by the time he passed his order on 19th February, 1968, and the order of assessment could not be revised at that stage; (2) that the assessee not having filed an appeal against the order of assessment could not invoke the revisional jurisdiction of the Deputy Commissioner; and (3) that as the exemption of the sales from tax was already available under the law and the assessee having shown the amount of turnover in its return and got the same assessed without protest could not later contest the liability and invoke the jurisdiction under Section 32. All the three contentions were rejected by the High Court and the appellant is before us in this appeal.

4. In our opinion, none of the contentions has any merit. Section 32(2) prescribes three conditions for the Deputy Commissioner to pass an order under sub-section (1) of the said Section-(a) the time for appeal against the order had expired; (b) the order had not been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal, or of a revision in the High Court; and (c) more than four years had not expired after the passing of the assess­ment order.

5. The above Section shows that the time limit prescribed does not prevent the Deputy Commissioner from passing an order on an applica­tion filed before him under Section 32 within the period mentioned in the sub-section. Here the revision petition under Section 32 was filed by the assessee within a period of four years and he passed an order on a later date. As the High Court has rightly pointed out, just because the Deputy Commissioner took time to pass the order on the application of the assessee, it cannot be said that the time limit of four years prescribed by the Section had expired and he had no jurisdiction to pass the order. We agree with the reasoning of the High Court and reject the first contention.

6. As regards the second contention, the Section itself contemplates a revision being filed when there was no appeal before the appellate authority. In fact, sub-section 2(a) says that a revision could be filed only after the time for appeal against the order had expired. That means, if the assessee had not filed an appeal within the time prescribed therefor, he could invoke the jurisdiction of the Deputy Commissioner under Section 32. That is what has been done in the present case by the assessee. The mere fact that he did not invoke the jurisdiction of the appellate authority will not prevent the assessee from invoking the jurisdiction under Section 32 of the Deputy Commis­sioner.

7. The third contention is based on the facts of the case. According to learned counsel for the appellant, the position in law was not settled for the first time in K.G. Khosla & Co. (P) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras1, by the Supreme Court. Wh