9911796707
TMI Blog1975 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order would start from the date of assessment order or would start according to the discretion of the assessing officer or the department from the time the assessing officer wishes to apprise the department about the passing of the assessment as in this case. " The respondent-assessee is a dealer carrying on business at Beriyaganj, Shahjahanpur. On July 26, 1958, the Sales Tax Officer passed an order assessing him for the year 1957-58. Subsequently, the Sales Tax Officer felt that by oversight a mistake had crept in the order of assessment made by him. Consequently, in January, 1960, he wrote a letter to the Personal Assistant to the Commissioner, Sales Tax, seeking guidance as to how he should proceed in the matter to rectify the omission. The Commissioner treated that intimation received on January 27,1960, as service on him. Thereafter on April 11, 1960, the Commissioner filed a revision application under section 10 of the Act before the judge (Revisions). When this revision came up for arguments before the revisional authority, the assessee urged that the revision was time-barred inasmuch as it had been filed more than 18 months after the date of the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no limitation for filing an application for revision was provided in the Act or in the Rules framed thereunder. Such a provision was first made by the U.P. Act 8 of 1954. This amending Act added sub-sections (3-A) and (3-B) in section 10 of the principal Act of 1948. Section 10, after this amendment, reads as follows: "10. Power of revision.-(1) The State Government shall appoint as Revising Authority a person qualified under clause (2) of article 217 of the Constitution for appointment as judge of a High Court. (2) The appellate authority appointed under section 9 shall be under the superintendence and control of the Revising Authority. (3)(i) The Revising Authority (or any Additional Revising Authority) may, for the purposes of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion, call for and examine, either on its own motion or on the application of the Commissioner of Sales Tax or the person aggrieved, the record of such order and pass such order as it may think fit: Provided that no such application shall be entertained in any case where an appeal lay against the order, but was not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Commissioner, is the date on which the order of assessment is served on the dealer. Fourth, the starting point of limitation is the date of service of the order on the revision-applicant, be he the Commissioner or the dealer. The first is manifestly untenable. Sub-section (3-B) starts with an express reference to "the application under sub-section (3)". Sub-section (3), in terms, provides that the revision application may be made either by the dealer or by the Commissioner. The Commissioner's right under sub-section (3) to move the revising authority by an application is distinct and independent of the one conferred on the dealer, although the latter has under section 9, an additional right of appeal against the assessment order, which must be exhausted before he can invoke the revisional jurisdiction under this section. Thus, in the context, sub-section (3-B) comprehends both categories of revision-applicants, namely, the Commissioner as well as the dealer. Mr. Manchanda, the learned counsel for the appellant canvasses, in the first place, for the second construction and, in the alternative, for the fourth, with the elucidation that the mere making of an order of assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have also referred to somewhat similar provisions of the Income-tax Act, and imported them by analogy into the sub-section in question so as to reach the conclusion that in the case of a revision application by the Commissioner, the starting point of limitation is the date on which the assessment order is made by the Sales Tax Officer. If we may say so with respect, in accepting that construction, the High Court has, as it were, by judicial legislation introduced in sub-section (3-B) a different starting point of limitation in case of a revision filed by the Commissioner. In our opinion, it is not proper to interpret section 10(3-B) of the Act on the analogy of sections 263(2) and 264(2) of the Income-tax Act, 1961, which are not in pari materia with the sub-section in question. It is safe and sufficient for our purpose to adhere to the scheme and language of the Act and the Rules. "Service" of an order of assessment in the context of the scheme of the Act and the Rules means something subsequent and distinct from the mere making of the order of assessment. It implies formal communication of the order after it has been passed on termination of the proceedings, so that the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely be expanded as "the date of service on the revision- applicant of the order complained of". This is the only interpretation which, in our opinion, comports best with the scheme and language of the statute and the maintenance of parity between the assessee and the department in the matter of limitation which was intended to be secured by the amendment of 1954. The alternative interpretations-one suggested by Mr. Hardy and the other devised by the High Court-appear to be repugnant to the scheme and object of the statute; they envisage a varying and uneven construction of the scope, meaning and effect of the word "service", applying it differently to different applicants though similarly situated. The very nature of the right to file a revision under section 10 imports, as a necessary condition, service or communication of the contents of the order complained of. In a sense, this remedial right cannot be said to accrue until the party concerned, on being served, becomes aware of the cause of grievance and consequent necessity of redress. The interpretation expounded by Mr. Hardy seems to be lop-sided and anomalous. It unfairly reserves the "service" exclusively for the dealer, k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion within the contemplation of section 10(3-B) of the Act. Accordingly, we allow the appeal, set aside the judgment of the High Court and answer the question referred in favour of the revenue. Since the revision application, in the instant case, was filed by the Commissioner within one year of the communication of the assessment order to him, it was within time. In the circumstances of the case, there will be no order as to costs. We part with this judgment with a note of regret, but in the hope that something good may come out of it. A statute is supposed to be an authentic repository of the legislative will and the function of a court is to interpret it "according to the intent of them that made it". From that function the court is not to resile. It has to abide by the maxim ut res magis valeat quam pereat, lest the intention of the legislature may go in vain or be left to evaporate into thin air. Where that intent is clearly expressed in the language of the Act, there is little difficulty in giving effect to it. But where such intent is covert and couched in a language which is imperfect, imprecise and deficient, or is ambiguous or enigmatic and external aids to interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
