S.M. Sikri JUDGMENT
K. Subba Rao, J.
1. I regret my inability to agree. The facts are fully stated in the judgment of my learned brother Shah J. It would, therefore, be enough if only the relevant facts were stated. The respondents are dealers in pepper and other condiments. For the year 1950-51 they submitted their return under the Madras General Sales Tax Act, 1939, wherein they claimed exemption in respect of certain transactions on the ground that they were commission sales exempted under s. 8 of the said Act. The Deputy Commercial Tax Officer, Cannoneer (Rural) gave the exemption claimed and assessed the tax on the turn-over relating to transactions other than those exempted. The Deputy Commissioner of Commercial Taxes, Coimbatore Division, called for the record of the case of the respondents for the said assessment year, and in exercise of the powers under s. 12(2)(i) of the Act directed a fresh enquiry in respect of the said exemption. He issued a notice on February 9, 1956, calling upon the respondents to show cause against the proposed revision of assessment. On the basis of fresh evidence, the Deputy Commissioner of Commercial Taxes came to the conclusion that the respondents did not act as commission agents but carried on the business of "outright purchase and sale" in respect of the entire turn-over. On that finding, he revised the order of the Deputy Commercial Tax Officer and assessed the respondents on a larger turn-over.
2. The short question is whether the Deputy Commissioner of Commercial Taxes has jurisdiction under s. 12(2)(i) of the Act, read with the relevant rule, r. 14-A, to make the order he did.
3. It is well settled that a subordinate provision, if inconsistent with the Act, must give way to the Act. Though there is an apparent conflict between a section of the Act and a rule made thereunder, an attempt should be made to reconcile them; that is to say, the rule may be so construed, if the phraseology permits it, as to make it consistent with the Act. If it is not possible,........