TMI Blog1997 (1) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. After furnishing the grounds of revision the hearing of the case was fixed on 7th May, 1975. There is nothing on record to show that the respondent wanted more time or had asked for more time. The respondent appeared through his advocate on 7th May, 1975 and submitted his written arguments. Thereafter the Commissioner has passed a detailed order on 26th May, 1975. Looking to these facts it cannot be said that a reasonable opportunity of hearing was not given to the respondent. - Civil Appeal No. 643, 644 of 1978, - - - Dated:- 21-1-1997 - AHMADI A.M. AND SUJATA V. MANOHAR JJ. R.K. Maheshwari, Advocate, for the respondent. Raj Kumar Mehta, Advocate, for the appellants. -------------------------------------------------- The judgment of the Court was delivered by Mrs. SUJATA V. MANOHAR, J. -The respondent is a partnership-firm carrying on business as agents of Hindustan Lever Ltd., Indian Oil Corporation and various other corporations. The respondent carries on wholesale business in the products of these companies and has its registered office at Kanatabanji, District Bolangir, in the State of Orissa. For the assessment year 1969-70 the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the submissions made by the respondent, revised the assessment orders and demanded excess taxes to the tune of Rs. 1,12,620 for the assessment year 1969-70 and Rs. 79,710 for the assessment year 1970-71. The respondent filed writ petitions before the High Court of Orissa being O.J.C. Nos. 1680 and 1681 of 1975 challenging the said orders of the Commissioner of Sales Tax. The challenge was two-fold. The respondent challenged the jurisdiction of the Commissioner of Sales Tax under section 23(4) of the said Act read with rule 80 of the Orissa Sales Tax Rules to revise the assessment. The respondent also submitted that it had not been given a reasonable opportunity of hearing before the Commissioner of Sales Tax. Both these contentions were upheld by the High Court which quashed the impugned orders dated 26th May, 1975. The present appeals are from the judgment and order of the High Court dated 28th April, 1977. Section 23(4) of the said Act is as follows: "23(4)(a): Subject to such rules as may be made and for reasons to be recorded in writing, the Commissioner may, upon application by a dealer or on his own motion revise any order made under this Act or the Rules made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndum of appeal is not in the specified form or if all the requirements of the form are not fully complied with, the appellate authority may reject the appeal summarily, after giving the appellant such opportunity as it may think fit to rectify the defects. (2) The appeal may also be summarily rejected on other grounds which shall be reduced to writing by the appellate authority: Provided that before an order rejecting an appeal is passed the appellant shall be given a reasonable opportunity of being heard." In the present case the appeals have been rejected under rule 49(1). This is clearly a rejection at the initial stage of filing of an appeal which is defective. Such rejection is before the appeal is taken up for consideration by the appellate authority. An order rejecting the appeal on the ground that it is not in the specified form or that all the requirements of the form are not fully complied with cannot be considered an appellate order within the meaning of rule 80. Rule 49(1) clearly provides that such summary rejection can take place after giving the appellant an opportunity to rectify the defects. This is not a rejection or dismissal of an appeal after hearing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late order had been passed. Some other High Courts, however, held that the power of revision could not be exercised only in respect of those points which were urged and decided n the appeal. In respect of points not so urged or decided in appeal, the power of revision could be exercised by the Commissioner. It is not necessary to examine this question here. This issue is now taken care of by an amendment made in 1988 in section 263 of the Income-tax Act. Explanation (c) to section 263(1) after amendment provides that where any order referred to in this sub-section and passed by the assessing officer had been the subject-matter of any appeal filed on or before or after the first day of June, 1988, powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. Prior to this amendment, however, in the case of Commissioner of Income- tax v. Amritlal Bhogilal Co. [1958] 34 ITR 130 this Court was required to consider a composite order passed by the Income-tax Officer granting registration to a firm under section 26A of the Indian Income-tax Act, 1922, along with an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed in appeal and the second appeal was dismissed by the High Court. The court said that the judgment of an inferior court if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior court loses its identity by its merger with the judgment of the superior court. This was clearly a case where at each stage the appeal was decided on merit. It has no relevance here. The other case relied upon by the respondent is of Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332. In that case the trial court had decided two suits having common issues on merit. There were two appeals therefrom. One of them was dismissed on the ground of limitation and the other on account of default in printing. With the result that the trial court's decision stood confirmed. This Court said that the decisions of the appeal court will be res judicata as the appeal court must be deemed to have heard and finally decided the matter. The entire controversy before the court related to the application of the doctrine of res judicata The power to revise in a taxing st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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