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2019 (12) TMI 1644 - HC - Indian LawsLevy of penalty for not making the payment of the electricity duty at the prescribed rate, within the due dates - Jurisdiction of Deputy Commissioner, Commercial Taxes to pass such order - Order passed under review - Section 9-A of the Bihar Electricity Duty Act - HELD THAT:- From the perusal of Rule 12 (1) of the Bihar Electricity Duty Rules, it is thus, clear that the Commercial Taxes Officer and the Deputy Commissioner of Commercial Taxes are the officers of the same rank, so far as the assessment order is concerned. Rule 14(10) & (11) clearly prescribe that for reviewing any order, other than the order passed by the Commissioner, the sanction of the Commissioner in writing is required, and such review cannot be made beyond the period of 12 months from the date of the passing of the order sought to be reviewed, and further, an order can be reviewed by an officer, who is the successor-in-office of the officer who had passed the order sought to be reviewed, only with the previous sanction of the Commissioner, even if the order is sought to be reviewed within the period of 12 months. A bare perusal of Section 5-A (2) of the Act shows that even the orders under this provision have to be passed by the 'prescribed' authority. Such authority may be prescribed either in the Act or in the Rules. If the contention of the learned counsels for the State is accepted that this provision is not subject to any Rules, then it is incumbent upon the learned counsel for the State to show as to where in the Act such authority has been prescribed, which could pass the order under Section 5-A(2) of the Act. The impugned penalty orders as contained in Annexure-12 to the writ applications, clearly show that they have been passed as review orders, and Annexure-10 to the writ applications, clearly show that in view of the audit objection made by the audit team of the Accountant General, the review proceedings had been initiated, and the letters had been issued to the Commissioner of Commercial Taxes, for granting sanction for review. According to Section 9-A (4), the prescribed authority to review an order, would be the officer who had passed the order, or his successor-in-office - The submission of the learned counsels for the State that the order is not an order passed in review, rather it is an order passed suo-motu, by an authority under the Act, imposing penalty, cannot be accepted. It is the settled principle of law that an order is to be read as it is, and its contents / nature cannot be improved by subsequent affidavits / submissions. Thus, it is clear and apparent that the impugned orders of penalty dated 30.1.2014, as contained in Annexure-12 to the writ applications, are actually the orders passed in review, in exercise of the powers under Section 9A (4) of the Act, read with Rules 14 (10 ) and (11) of the Rules, and these orders have been passed without any previous sanction in writing, of the Commissioner of Commercial Taxes, and have also been passed beyond the period of un-extendable limitation of one year. As such, these penalty orders cannot be sustained in the eyes of law. Consequently, the subsequent orders / Judgement passed by the Commissioner of Commercial Taxes, Ranchi, and the Tribunal, also cannot be sustained in the eyes of law. All the penalty orders are hereby, set aside. Consequently, the penalty amount deposited / recovered from the petitioner Company are directed to be refunded / adjusted in the future bills towards the electricity duty. Writ Applications allowed.
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