Judgment

HEGDE, J.:- These appeals are by certificate. They are directed against the Order of the Madras High Court in two writ petitions in which Mandamus was issued to the Board of Revenue to consider and decide the revision petitions filed by the assessee-respondent under Section 34 (1) of the Madras General Sales Tax Act, 1959 (1 of 1959) (hereinafter called the Act ).

2. The facts of the case lie within a narrow compass. The respondent-assessee was assessed to sales tax during the assessment years 1960-61 and 1961-62. Aggrieved by the orders of the assessing authorities, he went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed his appeals. Thereafter, he filed second appeals to the Sales Tax Appellate Tribunal. Madras. Those appeals were dismissed as having been time-barred. After the Tribunal dismissed the appeals the assesses moved the Board of Revenue under Section 34 (1) to revise the assessment orders. The Board came to the conclusion that it had no jurisdiction to entertain those petitions. The High Court, in the writ petitions filed held that the Board had jurisdiction to entertain those appeals and consequently issued a writ of mandamus to the Board to entertain the revision petitions and consider them on merits. It is against that decision the State of Tamil Nadu has come up in appeal.

3. In these appeals we are called upon to determine the true scope of S. 34. Section 34 (1) confers on the Board of Revenue suo motu power to call for and examine an order passed or proceeding recorded by the appropriate authorities under some of the provisions of the Act. Section 34 (2) reads thus:

"The Board of Revenue shall not pass any order under sub-section (1) if ..........

(a) the time for appeal against that order has not expired; or

(b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or

(c) more than four years have expired after the passing of the order."

4. The question for consideration is as to what is the meaning of the expression "the order has been made the subject of an appeal? Whether an appeal against an order which was dismissed as having been barred by time can be considered as an order which had been made the subject of an appeal"? This question does present some difficulty. But in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court. As far back as 1963 the scope of Section 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of Madras, (1963) 14 STC 724 (Mad). Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under Section 34. The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under Section 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contention and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean the subject of an "effective appeal" High Court took into consideration the mischief that would otherwise arise namely, all that an assesses, who wants to stifle the Board s suo motu power of revision, has to do is to file a time-barred appeal and get it dismissed. It was because of that difficulty the High Court in Erode Yarn Stores case, (1963) 14 STC 724 (Mad) came to the conclusion that expression the order which has been the subject of an appeal as meaning "subject of an effective appeal." In arriving at that decision, the High Court did take into consideration the decision of this Court in Mela Ram & Sons v. The Commr. of Income-tax, Punjab, 1956