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TMI Blog1976 (1) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ay usefully be stated at the outset. The appellant who was carrying on the business of execution of building contracts was assessed to sales tax under the Act by the Sales Tax Officer for the year 1955-56 by an order of assessment made on November 23, 1959. The appellant's appeal before the Assistant Commissioner of Sales Tax succeeded in part. He held that the assessment for the first two quarters of the year 1955-56 was invalid having been made out of time. The case was, therefore, remanded to the Sales Tax Officer for a fresh assessment in respect of the 3rd and 4th quarters of the year.' The Sales Tax Officer in pursuance of the appellate order of remand dated February 11, 1960, passed a fresh assessment order on March 21, 1960. The Commissioner, however, after notice dated July 21, 1960, to the appellant, by his order dated July 29, 1960, revised the appellate order of the Assistant Commissioner in exercise of his power under section 20(3) of the Act. He held that no part of the assessment for the year 1955-56 was barred and directed a fresh assessment to be made. A fresh assessment for all the four quarters was accordingly made by the Sales Tax Officer on September 24, 1960. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered can be assessed to tax under sub-section (2). Then sub-section (2a) says: "No assessment under sub-section (1) shall be made after the expiry of four years and no assessment under sub-section (2) shall be made after the expiry of six years from the end of the year in respect of which or part of which the assessment is made." A proviso was added to sub-section (2a) with effect from October 1, 1959, by the amending Act of 1959 and it reads as follows: "Provided that where such assessment is made in consequence of or to give effect to any order of an appellate or revisional authority or of a court, the period of four years or six years, as the case may be, shall be reckoned from the date of such order." It is to be noticed that a period of limitation has been provided in section 11(2a) and no assessment either under sub-section (1) or sub- section (2) can be made after the expiry of the specified period. But where such an assessment is made by the assessing authority in consequence of or to give effect to any order of an appellate or revisional authority or any order of a court made in reference, writ or in any other proceeding then, under the proviso, the period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 1951, a period of limitation of 60 days has been provided for the filing of an application in revision which can be extended under the proviso appended to that rule on sufficient cause being shown. But no such limitation has been provided for the suo motu exercise of the revisional power. Mr. Nariman very strongly relied upon the majority decision of this court in State of Orissa v. Debaki Debi [1964] 15 S.T.C. 153 (S.C.)., and submitted that the power of revision exercised by the Commissioner in this case beyond the period of four years prescribed in sub-section (2a) of section 11 was illegal and ultra vires. A close scrutiny of the argument will result in its rejection. In the Orissa case [1964] 15 S.T.C. 153 (S.C.)., all the orders made by the Collector in exercise of his power of revision under section 23 of the Orissa Sales Tax Act were passed later than 36 months from the expiry of the period in respect of which the assessment was made. The High Court's view that they were in contravention of section 12(7), which was a power of assessment or reassessment in case of an escaped or under-assessment, was not upheld. But it was found that the proviso to section 12(6) was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further period of four years. The ratio of the case in Debaki Debi's [1964] 15 S.T.C. 153 (S.C.)., must be confined within its four corners and cannot be extended to the facts of the instant case. In Swastik Oil Mills Ltd. v. H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay [1968] 21 S.T.C. 383 (S.C.)., the decision of this court in Debaki Debi's case [1964] 15 S.T.C. 153 (S.C.)., was distinguished on the ground that the provision of limitation of 36 months in substance was not a real proviso to the section in which it was placed but was in fact a period of limitation for all orders of assessment made under any other provision of the Orissa Act, while in the Bombay Act there was no such general provision prescribing a period of limitation for making an assessment. Reference to the period of limitation in section 11-A of the Bombay Act, which is a power of making assessment or reassessment in case of an escaped or under-assessed assessment was also rejected. Our attention was also drawn to the decision of a single Judge of the Punjab High Court, Delhi Bench, in Sir Sobha Singh & Company v. Commissioner of Sales Tax, Delhi [1966] 18 S.T.C. 416., wherein following the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Assistant Collector and for such a purpose proceedings could not possibly have been taken under section 11-A. In the instant case also, it could not be disputed that the view taken by the Assistant Commissioner in appeal was obviously wrong. The Commissioner while correcting that mistake in exercise of his revisional power was not doing anything which the Sales Tax Officer was empowered to do under section 11-A. He was merely setting right the illegality in the appellate order. The third point urged by the appellant is too obviously wrong to merit any detailed discussion. It was not the Commissioner who had passed the assessment order under section 11. That order was of the Sales Tax Officer acting as an officer to assist the Commissioner for the purpose of assessment. The assessment order was interfered with by the appellate authority, the Assistant Commissioner, and the Commissioner was revising the order of the Assistant Commissioner. All cannot be treated as Commissioners for the purpose of the different powers exercised by the three different authorities. The use of the term "Commissioner" in the sections is merely for the purpose of describing and, at any rate, including ..... X X X X Extracts X X X X X X X X Extracts X X X X
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