TMI Blog2008 (10) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... orders of the High Court are set aside and the appeals are allowed but without any order as to costs. - Civil Appeal Nos. 6276 of 2008, C.A. Nos. 6277-6279 of 2008 - - - Dated:- 24-10-2008 - ARIJIT PASAYAT DR. AND MUKUNDAKAM SHAA DR.RM JJ. K.G. Bhagat, Vineet Bhagat, Ehraz Zafar, Narendra Sharma, Satya Priya Kamra, Debasis Misra, Krishnan Venugopal, Arvind Verma, Ravindra Kumar, Manoj Kr. Dwivedi and Gunnam Venkateswara Rao, Advocates. Shanti Bhushan and Sunil Gupta, Senior Advocates. -------------------------------------------------- The judgment of the court was delivered by Dr. ARIJIT PASAYAT J. Leave granted. These four appeals involve common issues and, therefore, are disposed of by this common judgment. Challenge in each case is to the judgment of learned single judge of Allahabad High Court holding that the order passed by the Commissioner of Trade Tax, U.P. under section 10B of the U.P. Sales Tax Act, 1948 (in short, "the Act") (also described as U.P. Trade Tax Act, 1948) was within the period of limitation and therefore the order passed by the Trade Tax Tribunal, Kanpur Bench-1 (in short, "the Tribunal") passed in four connected Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order which is sought to be revised and cannot be extended to an order which has become final and in respect of which no proceeding under section 10B(1) has been initiated. With reference to the conclusions of the Joint Commissioner, it is submitted that by merely stating that the order dated May 29, 2003 was revised, the exemption granted previously has been withdrawn and it has been held that the tax is recoverable. It is pointed out that the effect of an order dropping the proceedings initiated for reassessment was considered by this court in Kundan Lal Srikishan, Mathura (U.P.) v. Commissioner of Sales Tax, U.P. [1987] 1 SCC 684. With the object of getting over the view expressed, an amendment was made by the U.P. Sales Tax (Amendment and Validation) Act, 1991 (in short, "the Validation Act") by adding Explanation III to section 21(1) with effect from March 1, 1973. It is pointed out that in Kundan Lal's case [1987] 1 SCC 684 [1987] 65 STC 62 (SC). this court with reference to the decision in Deputy Commissioner of Commercial Taxes v. H.R. Sri Ramulu [1977] 1 SCC 703 [1977] 39 STC 177 (SC). held that once a notice is issued for the purpose of making reassessment, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han an order mentioned in section 10A) passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect thereto as he thinks fit. (2) No order under sub-section (1) affecting the interest of a party adversely shall be passed unless he has been given a reasonable opportunity of being heard. (3) No order under sub-section (1), shall be passed (a) to revise an order, which is or has been the subject-matter of an appeal under section 9, or an order passed by the appellate authority under that section: Explanation . Where the appeal against any order is withdrawn or is dismissed for non-payment of fee payable under section 32 or for non-compliance of sub-section (1) of section 9, the order shall not be deemed to have been the subject-matter of an appeal under section 9; (b) before the expiration of sixty days from the date of the order in question; (c) after the expiration of four years from the date of the order in question or after the expiration of two years from the date of commencement of section 19 of the U.P. Sales Tax (Amendment and Validation) Act, 1978, whichever is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority, or the Tribunal or the High Court may, on its own motion or on the application of dealer or any other interested person rectify any mistake in any order passed by him or it under this Act apparent on the record within three years from the date of the order sought to be rectified: Provided that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period: Provided further that no such rectification, as has the effect of enhancing the assessment, penalty, fees or other dues shall be made unless reasonable opportunity of being heard has been given to the dealer or other person likely to be affected by such enhancement. (2) Where such rectification has the effect of enhancing the assessment, the assessing authority concerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act, and the Rules framed thereunder shall apply as if such notice had been served in the first instance." It is to be noted that in Kundan Lal's case [1987] 1 SCC 684 [1987] 65 STC 62 (SC). it was observed that on initiation of the reassessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself as to the legality or propriety of such order " and "with respect thereof". In the present case what the revisional authority was empowered to test was the legality or propriety of the order cancelling the notices issued under section 21(1) by order dated May 29, 2003. Such an exercise cannot encompass an order of assessment. It is of significance to note that the original orders have not been varied and could not have been varied after the period of limitation. What could not have been directly achieved has been attempted to be done in an indirect manner. If the revisional authority was of the view that the order dated May 29, 2003 was not legal, then that order would have been varied if it was found that order lacked legality or propriety. The expression "with respect thereof" makes the position clear that for testing the legality or propriety of the order (in the instant case the order dated May 29, 2003) if any order was to be passed that had to be passed with respect thereof. Such an order does not empower the revisional authority to make an order of assessment. As noted above, what the revisional authority has done is to substitute the original orders of assessment in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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