TMI Blog1988 (8) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... he interests of the Revenue, to invoke the revisional powers of the Commissioner, on the facts of the present case. The further contention of the learned counsel is that all errors need not be corrected by the revisional authority and the assessee has accepted the assessment and has also paid the tax and that, therefore, this is not a case of any prejudice having been caused to the interests of the Revenue. On these premises, it is urged that the assessee has to face another round of assessment proceedings and such de novo proceeding is, therefore, an unnecessary exercise. It is argued by the learned Government Pleader that the Commissioner, by his notification dated 13th March, 1980 had conferred the assessing powers in case of assessees whose tax liability exceeded Rs. 50,000, on the Assistant Commissioner of Commercial Taxes (Assessments), Bangalore with effect from 1st April, 1980. The assessment order in the case of the petitioner for the year ending 31st March, 1984 whose tax liability exceeded Rs. 50,000 is, therefore, one made without jurisdiction and the said order was, therefore, rightly set aside by the joint Commissioner and remanded to the Assistant Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second round of assessment proceeding which is wholly uncalled for and not justified in law. Sri Ramabhadran has cited the following decisions in support of his contentions: (i) V.K. Uchal v. Commissioner of Commercial Taxes, Mysore [1967] 20 STC 67 (Mys). This was a case under section 22-A of the Karnataka Sales Tax Act. The Commissioner's order was set aside on the facts of that case, holding that it was not prejudicial to the interests of the Revenue. (ii) B.C. Malliah v. State of Karnataka [1981] 47 STC 190 (Kar). The notice issued under section 12-A of the Act was the subject-matter of a revision before the High Court. The question that arose for decision was whether the C.T.O., after he was divested of the power to assess the dealers whose tax liability exceeds Rs. 50,000, could issue a notice to reopen. The High Court held that the notice issued by the C.T.O., who was no longer the assessing authority, was without jurisdiction and further held that it was only the Assistant Commissioner of Commercial Taxes, who was competent to deal with the assessments of the assessee and also to initiate proceedings under section 12-A of the Act. The revision petition of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the assessee had questioned the notice issued by the C.T.O. who had lost jurisdiction to assess the petitioner. (iii) Rampyari Devi Saraogi v. Commissioner of Income-tax, West Bengal [1968] 67 ITR 84 (SC). That was a case of exercise of jurisdiction by the Commissioner under section 33-B of the Indian Income-tax Act, 1922. The question that arose in that case was about the place where the assessee had been carrying on the business. The Commissioner set aside the order of assessment on the sole ground that the Income-tax Officer had completed the assessment without enquiring as to the place of business. The order of the Commissioner setting aside the assessment and transferring it to the jurisdictional Income-tax Officer, was upheld by the Supreme Court, observing that the said order, in no way, prejudiced the interests of the assessee. (iv) Gee Vee Enterprises v. Additional Commissioner of Income-tax, Delhi-I [1975] 99 ITR 375 (Delhi). The Delhi High Court declined to interfere with the order of the Commissioner made under section 263 on the sole ground that the assessee had a right of appeal against the said order to the Appellate Tribunal, which it had not availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order, that the Commissioner can interfere with the same. It is laid down in decided cases, not all errors can be revised, but only such orders which result in prejudice to the interests of the Revenue can be revised. How the prejudice is caused depends upon the facts of each case. This Court had occasion to deal with a similar argument in B.C. Malliah's case [1981] 47 STC 190. The Commissioner, it is seen, has mainly relied upon the decision of the Supreme Court in Sarjoo Prasad Ram Kumar's case [1976] 37 STC 533. The question that therefore arises for consideration is as to whether, on the basis of the ratio of the said decision, the Commissioner on the facts of the present case, rightly exercised his revisional jurisdiction. The Supreme Court held on the facts of that case, that the assessment order passed by an officer, who was not the designated authority and who had no territorial jurisdiction to assess the assessee, was not a valid assessment. The question of jurisdiction in such cases goes to the root of the case as laid down by the Supreme Court in the said case. The contention of the learned counsel for the assessee is that, a future contingent action on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of pecuniary jurisdiction, namely, the tax liability, undoubtedly, involves the question of jurisdiction and goes to the root of the case. Sri Ramabhadran is not able to cite any decision in support of his contention that the possibility of an assessee challenging the order of assessment on the ground of illegality, or want of jurisdiction at any future point of time, cannot form the basis for invoking the revisional power of the Commissioner. On the other hand, the Commissioner while exercising his revisional jurisdiction, in setting aside the order passed by the C.T.O., who was not the competent assessing authority, had in his mind, the want of jurisdiction of the officer, which can, at any time be the ground for questioning the assessment order. Therefore, mere chance or possibility of such an action being taken by the assessee and to ask for refund of the tax paid on that ground, is sufficient to clothe the Commissioner with the power and reason to cancel the assessment. Therefore, the order made by the Joint Commissioner of Commercial Taxes (Vigilance), Bangalore (annexure-D), on the facts of the present case is justified, both on facts and in law, and the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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