TMI Blog1997 (9) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... ab Banerjee, Advocates, with him), for the respondents. A.B. Diwan, Senior Advocate (P.N. Misra, Advocate, with him), for the appellants. -------------------------------------------------- The judgment of the Court was delivered by V.N. KHARE, J. -Leave granted in all the matters. These appeals by special leave, raise the question whether the Commissioner of Sales Tax, suo motu can revise under clause (a) of sub-section (4) of section 23 of the Orissa Sales Tax Act (in short, the Act ) read with rule 80 of the Orissa Sales Tax Rules (in short, the Rules ), an appellate order passed by the Assistant Commissioner of Sales Tax. 2.. The respondent herein is a registered dealer under the Act and running a wholesale business in purchase and sale of betel-nuts at Malgodon, Cuttack. In pursuance to the notices issued under section 12(4) of the Act, the respondent appeared before the concerned Sales Tax Officer and produced the books of accounts for the relevant assessment years for verification. The Sales Tax Officer rejected the books of accounts produced by the respondent-dealer and completed the assessments to the best of his judgment. Feeling aggrieved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed rule 80 of the Rules before the High Court of Orissa on the ground that issue of notice to revise an appellate order is without jurisdiction. This Court while interpreting section 23(4)(a) of the Act was of the view that, in the context of section 23(4) where the words other than an appellate order are absent, there is no limitation on the power of the Commissioner exercising suo motu power as to revise an appellate order. This Court held thus: ............Under section 23(4) the Commissioner can, inter alia, on his own motion revise any order made under this Act or the Rules by any person other than a Tribunal or an Additional Tribunal. Therefore, under this sub-section the Commissioner is not expressly prevented from revising an appellate order if made by any person other than the Tribunal or an Additional Tribunal. 4.. In that case, the unamended rule 80 also fell for consideration. The unamended rule 80, as it stood then, is extracted below: 80. The Commissioner may on his own motion, at any time within three years from the date of passing of any order by the Assistant Sales Tax Officer or by the Sales Tax Officer and within two years from the date of passing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded rule 80, substantially resolves the controversy as regards the Commissioner exercising suo motu power of revision as to revise under section 23(4)(a) of the Act read with rule 80 of the Rules, an appellate order. 8.. Adverting to the first reasoning given by the High Court that the appellate order does not fall within the meaning of the expression order made under the Act occurring in clause (a) of sub-section (4) of section 23 of the Act, it is necessary to set out the provisions of the Act which are extracted below: 23. Appeals and revision.-(1) Within thirty days from the date of receipt of the copy of- (a) an order of assessment with or without penalty under section 12, 12-A or 12-B; or (b) an order directing payment of interest under sub-section (4-a) of section 12; or (c) an order imposing penalty under sub-section (3) of section 9-B or under sub-section (3) of section 11, any dealer or person, as the case may be, may, in the prescribed manner appeal to the prescribed authority against such order: Provided that no appeal shall be entertained by the said authority unless he is satisfied that such amount of tax as the appellant may admit to be due from hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (3) did not avail of such remedy or the application is not filed within the prescribed period. Explanation .-Any provision contained elsewhere in this Act which provides for determination of any specific matter shall not debar the Commissioner from determining such matter in exercise of the powers conferred upon him under this sub-section..... 9.. A perusal of the aforesaid provisions shows that section 23 of the Act deals with appeals and revision. Sub-section (1) thereof provides that any dealer or person may prefer an appeal against the order of assessment or an order directing payment of interest or an order imposing penalty. Sub-section (2) of section 23 deals with power of appellate authority in disposing of appeals preferred under sub-section (1). Sub-section (3)(a) deals with second appeal which enables any dealer or State Government, as the case may be, to prefer appeal to the State Sales Tax Tribunal against the appellate order. Section 23(4)(a) deals with the revisional power of the Commissioner of Sales Tax, which may be either suo motu or at the instance of a dealer or person against any order passed under the Act. The question, therefore, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carve out something special out of the general enactment or to qualify what is in the enactment. By enacting the proviso the Legislature has excluded the revisional jurisdiction of the Commissioner of Sales Tax to revise an appellate order if invoked at the instance of a dealer or person when such dealer or person has a remedy by way of an appeal. As noticed earlier, the limitation on the suo motu power of the Commissioner as to revise an appellate order has not been expressly provided in the proviso. In the absence of any expressed provisions, no limitation on suo motu power of the Commissioner to revise an appellate order can be implied. We, accordingly hold that the provisions of proviso to sub-section (4)(a) of section 23 of the Act do not prohibit the Commissioner to exercise suo motu revisional power to revise an appellate order. 11.. For the foregoing reasons, we are satisfied that the High Court fell in error in quashing the impugned notices and allowing the writ petition of the respondent herein. We accordingly set aside the order and judgment of the High Court dated February 12, 1996 in O.J.C. Nos. 4496 and 4497 of 1995 Reported as Halari Store v. Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X
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