TMI Blog1961 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... 87,925-9-0 respectively. At the relevant time there was a proviso to section 6(1) of the Bombay Sales Tax Act, 1946, which authorised the Taxing Officer to levy tax at half the usual rate on the value of the goods sold or exported outside the Province or State of Bombay. Relying on this provision, the Sales Tax Officer levied sales tax at half the usual rate on the value of the goods despatched by the firm to its branches at Delhi and Calcutta. The petitioner preferred an appeal to the Assistant Collector of Sales Tax and contended that the despatches of goods to Delhi and Calcutta were not by way of sales and that the Sales Tax Officer was not justified in subjecting them to sales tax. The Assistant Collector of Sales Tax accepted this argument, and by his order dated 26th October, 1956, deducted the aforesaid amount from the petitioner's turnover with the result that the petitioner become entitled to a refund of about Rs. 28,000. Nearly four years thereafter the respondent (the Deputy Commissioner of Sales Tax, Bombay) issued a notice, in exercise of his revisional powers under section 31 of the Bombay Sales Tax Act, 1953, calling upon the petitioner to show cause why the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation which has come into his possession, the Collector is satisfied that any turnover in respect of sales or supplies of any goods chargeable to tax under this Act has escaped assessment in any year or has been under-assessed or assessed at a lower rate or any deductions have been wrongly made therefrom, the Collector may proceed to assess or re-assess the amount of tax from such dealer..." A notice had to be issued to the dealer under that section and the section put a limitation on the Collector's power of re-assessment by providing that the notice was to be issued within five years of the end of the year of assessment in any case where the collector had reason to believe that the dealer had concealed the particulars of his sales or supplies or deliberately furnished incorrect returns, and in any other case, within three years of the end of the year of assessment. Section 22 of the same Act (the 1946 Act) dealt with the revisional powers of the Collector and it provided: "Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Collector may, upon application or of his own motion, revise any order passed under this Act or the rules thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cit in those decisions that revisional powers for enhancing an assessment must be exercised within a reasonable period of time. By the amending Act No. 22 of 1959, the Legislature introduced a clause in section 15 of the 1953 Act to make it clear that the periods of limitation mentioned therein for the purpose of re-assessment did not apply to any proceeding for assessment under section 14 or any proceeding for revision under section 31 of that Act. The Legislature thus emphasized that, when the Collector proceeded suo motu in exercise of his revisional powers, he was not affected by any period of limitation express or implied. When we turn to the Bombay Sales Tax Act of 1959, we find that the provisions contained therein relating to re-assessment and revision (sections 35 and 57 respectively) are materially different from the corresponding provisions of the earlier Acts. Before dealing with these provisions, however, it is necessary to emphasize that the effect of the repeal of the 1953 Act by the 1959 Act was also dissimilar from the effect of the repeal of the 1946 Act as provided by the 1953 Act. By virtue of section 48(2)(iii) of the 1953 Act, proceedings connected with asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at any time within eight years, and (c) in any other case, at any time within five years, of the end of that year, serve on the dealer liable to pay tax in respect of such turnover, a notice containing all or any of the requisitions which may be included in a notice under sub-section (3) of section 33 and may proceed to assess or re-assess the amount of the tax due from such dealer; and accordingly, the other provisions of this Act shall apply as if the notice were a notice served under that sub-section: Provided that, the amount of tax shall be assessed at the rates at which it would have been assessed had there been no under-assessment or escapement, but after making deductions (if any) permitted from time to time by or under this Act, or as the case may be, any earlier law: Provided further that, where in respect of such turnover an order has already been passed in appeal or revision under this Act or the relevant earlier law, the Commissioner shall make a report to the appropriate appellate or revising authority under this Act, which shall thereupon after giving the dealer concerned a reasonable opportunity of being heard, pass such order as it deems fit. (2) Nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer appointed under section 20 to assist him, may call for and examine the record of any such order and pass such order thereon as he thinks just and proper." It is necessary to note in this connection that the revisional powers which can be exercised by the Commissioner under section 57 are not confined to revision of assessment orders. All orders passed under the Act by subordinate officers, including orders relating to registration, licences, etc. are revisable by the Commissioner under section 57. Such was also the scope of the revisional powers under the earlier Acts. Moreover with regard to assessment orders passed by subordinate officers, revisional powers could be exercised for reducing as well as enhancing the amount of assessment. Section 35, on the other hand, is confined to cases where, on the grounds mentioned in that section, the Commissioner proposes to enhance the amount assessed on any dealer. Section 77(1), in so far as it is relevant, provides that notwithstanding the repeal by section 76 of the Bombay Sales Tax Act, 1953, the repealed laws shall -subject to the provisions of sections 35 and 42, continue to have effect for the purposes of the levy, assessment, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand, the respondent has overlooked the circumstance that section 77(1)(a) of the 1959 Act has continued the provisions of the 1953 Act with regard to prior assessments "subject to the provisions of sections 35 and 42". We are not concerned in this case with section 42. In matters covered by section 35 of the 1959 Act, the Commissioner (and the Deputy Commissioner as in the present case) has no right to adopt the procedure of any provision of the 1953 Act, including section 31 thereof. The impugned notice of the respondent shows that, according to him, the turnover of purchases of the petitioner's firm during the aforesaid period has escaped assessment. It is immaterial whether this view has been formed by the respondent from the record of the assessment proceedings or on the basis of information received de hors the record. The action which the respondent proposes to take is thus covered by the powers which are granted to the Commissioner by section 35. That being the case, the respondent is not entitled, in view of section 77(1)(a) of the Act. to fall back on any of the provisions of the 1953 Act for the purpose of subjecting the escaped turnover to assessment. If the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner) by section 31 of the earlier Act. It is to be noticed, however, that sub-section (3) of section 77 provides for the application of section 7 of the Bombay General Clauses Act "without prejudice to the provisions contained in the foregoing sub-sections and subject thereto." It must, therefore, follow that the exercise of the revisional powers under section 31 of the 1953 Act is subject to the provisions contained in section 77(1)(a) and those revisional powers cannot, therefore, be exercised in matters covered by section 35 of the 1959 Act. Reliance was also placed by Mr. Bhabha on a ruling of a Division Bench consisting of the Chief Justice and Mr. Justice V. S. Desai in Special Civil Application No. 124 of 1959, decided on 6th August, 1959, prior to the 1959 Act. In that case, several years after an assessment order had been passed, it was discovered that the assessee had suppressed his real turnover, and a notice was issued on him under section 31 of the 1953 Act for revision of the assessment order. When the notice was issued, the period of limitation provided for re-assessment under section 15 of that Act had already expired. The Division Bench held that, even where the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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