TMI Blog1966 (5) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... the return. The petitioner's appeal was rejected on 20th July, 1956, and aggrieved by the said order he filed a revision before the Commissioner of Sales Tax inter alia on the ground that the petitioner was not a dealer under the Act and, therefore, not liable to sales tax. By order dated 21st December, 1956, the Commissioner of Sales Tax allowed the revision and quashed the assessment. He, however, remanded the matter to the Assessing Authority with a direction to take steps to cancel the registration certificate of the dealer after collecting from it the tax saved by making tax-free purchases on the, basis of the registration certificate. In Mithan Lal v. State of Delhi[1958] 9 S.T.C. 417; A.I.R. 1958 S.C. 682., the Supreme Court decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 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." The assessees challenged the orders before the High Court, and the High Court thought that section 12(7), which deals with escapement of assessment, includes also the order of assessment made by the revising authority under section 23(3) and in that view held that the orders of assessment passed beyond thirty-six months were barred by limitation. The Supreme Court, however, did not accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, independent of the powers under section 12. A close examination of the terms of section 23 would make this position clear. Let us first take the case of the powers of the appellate authority under section 23(2). Among the orders he might pass in disposing of an appeal are '(b) set aside the assessment .... and direct the assessing authority to pass a fresh order after such further enquiry as may be directed'. Mr. Sastri did not dispute the position that if the appellate authority exercised the power underlined the 'assessing authority' can proceed to carry out the fresh assessment only under section 12 and that, in that event, his right to proceed further in the way of assessment would be subject to the limitation of 3 years pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders it might pass are not conceived of as differing in any manner from those of the appellate authority. We have, therefore, no hesitation in holding that even when an appellate or revisional authority is effecting a fresh assessment by enhancing it, it is exercising the power which is conferred by section 12, and, so to speak, doing the duty which an assessing authority would or ought to have performed. Any order of assessment made by the appellate authority or as in the present appeals by the revising authority must therefore be held to be orders passed under section 12 as well as under section 23. Consequently, the period of limitation prescribed in the second proviso in section 12(6) will in terms become applicable." It is argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Legislature as it has now been provided that the bar of limitation shall not apply where an assessment order is made in consequence of or to give effect to any order of an appellate or revisional authority or of a Court. It is, however, not in dispute that this proviso is not applicable to the case in hand having been introduced in 1959. I must, therefore, ascertain the meaning of the statute as in force, before the year 1959. I have carefully considered the decision of the Supreme Court and am of the opinion that on the parity of reasons which found favour with the majority of their Lordships, it must be held that the petitioner is right in his contention. True that the proviso which fell for consideration before the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf, There is no difference between the language of section 23(2) of the Orissa Act and section 20(2) of the Act under consideration and that is why I have said that the anomalies visualised by the Supreme Court under the Orissa Act would equally arise under the present Act. If section 23(2) of the Orissa Act did not provide the source of power to effect an assessment, section 20(4) also cannot provide that source. Consequently, when the appellate or revisional authority exercises power under section 20, it is in effect making an order of assessment under section 11(1). That would, in my opinion, be equally true of the power of review exercised under section 20(4). It is hard to accept that the Legislature intended that the power of review ..... X X X X Extracts X X X X X X X X Extracts X X X X
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