TMI Blog1971 (9) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, for the appellant. -------------------------------------------------- The judgment of the court was delivered by HEGDE, J.- This appeal by special leave arises from the decision of the Madhya Pradesh High Court in a reference under section 44 of the Madhya Pradesh Sales Tax Act, 1959. The reference was made by the Board of Revenue. After stating the case, the Board of Revenue referred the following question to the High Court for its opinion: "Whether on the facts and circumstances of the case the Commissioner of Sales Tax acted illegally in exercising his powers of revision under section 39(2) of the Madhya Pradesh General Sales Tax Act, 1958, in respect of the assessment order dated December 28, 1961, which was passed in respect of the returns submitted on January 30, 1958, and June 17, 1958, and on the basis of the notice in Form XI issued on August 29, 196l." The High Court answered that question in the affirmative and in favour of the assessee. Aggrieved by that order, the Commissioner of Sales Tax, Madhya Pradesh, has come up in appeal to this court. The assessee, M/s. Amarnath Ajitkumar was a registered dealer under the Madhya Bharat Sales Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, the Commissioner could have exercised his power under section 39(2) of the M.P. Sales Tax Act, 1959. Section 12(1) of the Madhya Bharat Act provides: "The Commissioner may in his discretion at any time suo motu or being moved by the assessing authority, call for and examine the records of any proceedings under this Act and if he considers any order is illegal or improper or erroneous in so far as it is prejudicial to the interests of the revenue, he may pass orders as he thinks fit: Provided that no 6rder shall be passed prejudicial to a dealer without giving him an opportunity of hearing; Provided further that the Commissioner shall not revise an order which has been made more than two years previously." From the second proviso, it is clear that the Commissioner is precluded from revising an order which had been made more than two years previously. That proviso did not lay down any rule of limitation. But it took away the power of the Commissioner to revise any assessment after the prescribed period. Thereafter the assessment became final and conclusive as against the department as well as the assessee, unless it was liable to be changed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.)., and Swastik Oil Mills Lid. v. H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay [1968] 21 S.T.C. 383 (S.C.)., the Commissioner was incompetent to revise the order because of section 12(1) of the Madhya Bharat Act read with section 52(1) of the M.P. Sales Tax Act, 1959. Hanuman Prasad's case(1) arose out of the M.P. Sales Tax Act, 1959. Therein in respect of a period governed by the Central Provinces and Berar Sales Tax Act, 1947, the assessee therein filed its return and a notice in form XII was issued to him on March 10, 1959. The assessee's turnover was assessed by an order dated May 23, 1959. But in the meantime, the M.P. Sales Tax Act, 1959, came into force on April 1, 1959. The Commissioner sought to revise the order of assessment on the ground that a portion of the assessee's turnover had escaped assessment. The question arose whether he had to exercise his powers within the time fixed by the C.P. and Berar Sales Tax Act, 1947, or that fixed under the M.P. Sales Tax Act, 1959. The specific question that arose for decision in that case was whether the Commissioner's power to revise had to be exercised in accordance with section 11A(1) of the Central Provinces and B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse case. Therein the assessee was assessed to sales tax under the Bombay Sales Tax Act, 1946, for the periods April 1, 1948, to March 31, 1950, and April 1, 1950, to March 31, 1951. On January 7, 1963, the Deputy Commissioner initiated proceedings under section 31 of the Bombay Sales Tax Act, 1953, proposing to revise the order of the Assistant Collector of Sales Tax in so far as he had allowed deduction in respect of the entire goods despatched by the assessee to its branches in other States overlooking the provisions of proviso (b) to rule 1 (ii) under section 6(3) of the Act of 1946 as amended in 1949. The question was whether the Deputy Commissioner could take advantage of the longer period prescribed under the Bombay Sales Tax Act, 1946, or whether he was required to exercise his powers within the shorter period fixed under the 1953 Act. The Bombay High Court as well as this court came to the conclusion by applying the provisions in section 7 of the Bombay General Clauses Act (1 of 1904) that the Deputy Commissioner was entitled to exercise his power of revision within the period prescribed under the repealed Act. Section 7 of the Bombay General Clauses Act provides, "where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edies in respect thereof had also to be taken under the same Act. Consequently, the Deputy Commissioner, in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under section 22 of the Act of 1946. That, however, is not at all material, because the provisions of section 22 of the Act of 1946 are quite similar to those of section 31 of the Act of 1953. The mere incorrect mention of section 31 of the Act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under section 22 of the Act of 1946, and, consequently the proceedings initiated by him are not without jurisdiction." Now coming back to section 52 of the M.P. Sales Tax Act of 1959, the proviso to section 52(1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under section 12(1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee. The effect of that provision is that after the time prescribed i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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