TMI Blog1958 (7) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) of the Orissa Sales Tax Act. But the appellate authority allowed them as claimed by the dealer in pursuance of the orders of the Board of Revenue in the case of Khemchand Chandanmal of Balangir on the ground that the deduction was legal till the amendment of the provisions of the Orissa Sales Tax Act on 26th November, 1951. In view of a subsequent decision of this Court in the case of Messrs Hindustan Cellulose and Paper Mills Ltd. v. Collector of Sales Tax and the State, the Collector of Sales Tax verified the records of this case under rule 54 of the Orissa Sales Tax Rules and coming to the conclusion that the appellate orders were incorrect issued a notice to the dealer and revised the appellate orders on 23rd November, 1955, and ordered that the taxable turnovers allowed to be deducted by the Assistant Collector should be raised and fresh demand notices should be served on the dealer accordingly. 3.. In O.J.C. No. 296 of 1956 the petitioner is a dealer under the Orissa Sales Tax Act and was assessed on his taxable turnover for the quarters ending 30th June, 1951, 30th September, 1951, and 31st December, 1951. Out of the total claims made by the dealer on account of sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellate authority. The Collector of Sales Tax revised the order of the appellate authority on 2nd March, 1956, and assessed the turnover which was deducted by the appellate authority. The petitioner in this case did not file the order of the Collector along with his application and it is regrettable that this defect was not noticed by the stamp reporter and no defect was noted at the time of the stamp reporting. I could not get at the order at the time of writing the judgment as it is not in the record. The stamp reporter should, if any necessary document is not filed along with the applications, note that defect in the stamp report. 5.. The petitioners' case in all these three applications is that as under section 12(7) of the Orissa Sales Tax Act nobody shall be assessed on amount that had escaped assessment or that had been underassessed after 36 months of the end of the period for which the tax is payable, the assessments in these cases which are admittedly after 36 months are contrary to law and without jurisdiction. The petitioners further contended that rule 54 of the Sales Tax Rules is subordinate to and controlled by section 12(7) of the Sales Tax Act. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n writing, the Collector may, upon application or of his own motion, revise any order passed under this Act or the rules thereunder by a person appointed under section 3 to assist him, and, subject as aforesaid, the Revenue Commissioner may, in like manner, revise any order passed by the Collector: Provided that before rejecting any application for the revision of any such order the Collector or the Revenue Commissioner, as the case may be, shall consider it and shall record reasons for such rejection." Rule 54 of the Orissa Sales Tax Rules, 1947, is as follows: "54. Revision by Collector and Revenue Commissioner suo motuThe Collector may, of his own motion, at any time within one year from the date of passing of any order by the Assistant Sales Tax Officer or by the Sales Tax Officer or by the Assistant Collector, as the case may be, call for the record of the proceeding in which such order was passed and revise any such order from which no appeal has been preferred, and the Revenue Commissioner may in like manner, at any time within one year from the date of passing of any order by the Collector call for the record of proceeding in which such order was passed and revise any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of a dealer the Assistant Sales Tax Officer appointed by that designation by the Provincial Government under section 3 of the Act to assist the Collector, within whose jurisdiction that place of business is situated and clause (e) says, " 'Collector' means the Collector of Sales Tax and includes any officer to whom the Collector of Sales Tax may delegate under section 17 his powers and duties under the Act". No delegation of such power under section 17 by the Collector to the Assistant Sales Tax Officer is placed before us. Consequently on a reading of the various definitions stated above, I cannot accept the contention of the learned counsel that the word "Collector" as used in section 12(7) refers to only the officer making the reassessment as an officer in the first instance and does not refer to a Collector revising a reassessment under section 23(3). Rule 3 enumerates the Sales Tax Authorities and it says: "(1) Under section 3 of the Act the Provincial Government may appoint the following classes of Sales Tax Authorities, with jurisdiction over specified areas, namely: (a) Collector of Sales Tax, (b) Assistant Collectors of Sales Tax, (c) Sales Tax Officers, (d) Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 922, could not be applied with regard to the provisions contained in the proviso to section 10(6) and section 20 of the Bihar Sales Tax Act, 1944. In a very learned Judgment, if I may say so with respect, Das, C.J., (as he then was) discussed the various provisions referred to above of the Bihar Agricultural Income-tax Act of 1938 and of the Indian Income-tax Act of 1922, compared them to the sections in the Bihar Sales Tax Act and came to the conclusion that as in the said two Acts the revisional power was subject to the other provisions of the Act, the principle laid down under the said Acts could not be applied to the provisions of the Sales Tax Act, where the revisional power is not subject to the other sections of the Sales Tax Act. In the course of the judgment, the learned Chief Justice (as he then was) observed. "In my opinion, this argument fails to take note of several important distinctions which exist between the provisions of the Bihar Agricultural Income-tax Act, 1938, and the Indian Income-tax Act on the one hand and the provisions in the Bihar Sales Tax Act, 1944, on the other. First of all, section 24 of the Bihar Agricultural Income-tax Act, 1938, says in clear te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 10. That does not, however, mean that a distinction between an original order of assessment under section 10 and a fresh order of assessment directed by the appellate or revisional authority cannot be made. In my opinion, such a distinction can and ought to be made in order to avoid absurdity and repugnancy between the different provisions of the Bihar Sales Tax Act, 1944." On the authority of this decision which, according to Mr. Misra, is on all fours with the present case before us, he contends that the orders complained against are perfectly valid as they are not subject to section 12(7) of the Orissa Sales Tax Act. I cannot accept this contention. The provision in section 10(6) of the Bihar Sales Tax Act of 1944 is quite different from that contained in section 12(7) of the Orissa Sales Tax Act. There is no provision in the Bihar Sales Tax Act of 1944 or of 1947 corresponding to section 12(7) of the Orissa Sales Tax Act. The learned Chief Justice (as he then was) in the above Patna case himself makes an express reservation by saying "I should make it quite clear at the very outset that the question which we have to answer has to be answered with reference to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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