TMI Blog1981 (2) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... was the same the dealer specifically stated that it will not matter whether the transactions were included under the local Act or the Central Sales Tax Act (the liability being the same on him). But notwithstanding this stand, after obtaining deduction under the local Act the assessee filed an appeal before the Assistant Commissioner against the order passed under the Central Sales Tax Act contending for the contrary stand. He succeeded before the Assistant Commissioner who held that these transactions were not covered by Central Sales Tax Act and they were local sales. He, therefore, allowed the appeal by his order of 16th August, 1962, and quashed the assessment under the Central Act. The Commissioner of Sales Tax by his notice of 4th October, 1962, informed the assessee that it was proposed to revise the assessment order for 1957-58. The gist of order proposed to be passed was mentioned as follows: "In the appellate order No. 813 of 1959-60 dated 11th August, 1962, for the year 1957-58 passed by Shri U.P. Sinha, Assistant Commissioner, Sales Tax, he has allowed the appeal saying that the tax on interim consignee sales amounting to Rs. 14,78,323 should have been levied und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment year. As in the present case the end of the assessment year is 31st March, 1958, and as notice was issued after March, 1962, the revisional order has been held to be beyond time. In this regard, the learned Judge relied on a single Bench judgment of this Court in Union of India v. Gurbaksh Singh[1974] 33 S.T.C. 91; 7 D.S.T.C. 162. wherein the view was taken that limitation period is also to be read when exercising power under section 20(3) of the Act. This view of the learned single Judge is no longer good law in view of the Supreme Court decision in this very case reported in S.B. Gurbaksh Singh v. Union of India [1976] 37 S.T.C. 425 at 429 (S.C.). wherein it has been held that no time-limit has been prescribed for exercise of revisional power although the exercise may have to be done within a reasonable time. In the present case the notice was issued on 4th October, 1962, and cannot obviously be said to be beyond a reasonable time. As there is no limitation provided under section 20(3) of the local Act for exercise of suo motu revisional power the learned Judge's finding that the revisional order was bad because of the bar of limitation cannot be accepted and this f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the device of purporting to exercise power of suo motu revision to avoid the bar of limitation. Such a contention is disputed by the counsel for the appellant-department. The question to be decided is whether the power exercised by the Commissioner could have been exercised under section 11A, that is to say, is section 11A of the Act applicable to the present case. If so, exercise of revisional power is forbidden. But if not, then the Commissioner's order passed in revision is valid and must be upheld. Now, it will be seen that there was no omission or concealment of the turnover at the time when the original assessment took place. The position really was that as the rate was the same, the assessee made a statement before the assessing authority which is reproduced in the revisional order that it makes no difference whether the tax is paid under the local Act or the Central Sales Tax Act. As a matter of fact, the revisional order notices that the assessee had shown the impugned sales as taxable under both the Acts. The Sales Tax Officer took the view that this transaction was outside the State and tax leviable under the Central Act and gave deductions under the local Act. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 11A of the Act not being a case of either any escaped assessment or under-assessment. It was rather a case where the assessing authority had considered the transactions taxable under the Central Act, which view was held to be erroneous by the Commissioner. Mr. Chawla referred to Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, Bihar and Orissa[1959] 35 I.T.R. 1 (S.C.). In our view that authority is of no assistance to him. It is no doubt true that it was held in that case that the information under section 34(1)(b) of the Income-tax Act, 1922 [which was broadly couched in the same language as section 11(a) of the local Act], would include knowledge even on a state of law and that it would be open to the Income-tax Officer to proceed under the said section, if the information about the true and correct state of law came to his notice after the assessment had been made. In that case the Income-tax Officer in pursuance of the direction by the Appellate Tribunal exempted from income-tax the interest on arrears of rent payable in respect of agricultural land in view of the decision of the Patna High Court. Subsequent to the assessment that decision of the Patna High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a question of law it naturally includes a decision by a competent superior authority from the one which had taken the decision earlier. The Commissioner who is an authority also to issue notice under section 11A of the Act cannot obviously be said to be receiving subsequent "information" in the sense of coming to know as to what is the correct law. It is patent that a decision given by the Appellate Assistant Commissioner who is a subordinate authority cannot be given that status vis-a-vis the Commissioner. As a matter of fact under law it was open to the Commissioner to revise the order of the Appellate Assistant Commissioner if he was of the opinion that the decision of Appellate Assistant Commissioner was wrong and that the transaction was liable to tax under the Central Act. The fact was that the Commissioner agreed with the Appellate Assistant Commissioner that the transaction in question was liable to tax under the local Act, he inevitably felt the necessity of revising the order of the assessing authority which had taken the view that the transactions in question were liable to tax under the Central Act. The only power permissible to seek to nullify the order of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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