TMI Blog1989 (7) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... able goods disclosed by the petitioner and on consideration of the facts and circumstances of the case determined the turnover of the petitioner and completed the assessments. That was done on May 19, 1981, by three different orders. After completion of assessments, the petitioner received a notice issued by the Commissioner of Taxes informing that he had called for the records of the assessments of the petitioner for the three years stated above and on perusal of the same he was of the opinion that the same had been hurried and superficial and, therefore, in the interest of the revenue and in exercise of the powers under section 21 of the Act he wanted to re-examine the books of account for the said periods. By the said notice the petitioner was asked to show cause why the orders of the Superintendent of Taxes should not be modified. He was also directed to produce all records relating to production, sale, payment of wages and other evidence he wished to adduce in support of his contention in respect of those assessments. The aforesaid notice is set out below: "Revision Case No. 89/82/130-131 SDR/ST/813(B)/76 Commissioner of Taxes v. Priyavart Dewan Singh I called for the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal was filed before the Tripura Sales Tax Tribunal. The Tribunal did not go into the main contentions of the petitioner relating to the jurisdiction of the Commissioner to issue notice on the ground that it was premature. It, however, observed: "It is not correct to construe the provision of section 21 to mean that there must be some error obvious on the face of the records. Any assessment order can be taken up for revision by the Commissioner if he is of the view that it is prejudicial to the interest of the revenue". The Tribunal also directed the Commissioner to give another opportunity to the petitioner to produce the vakalatnama and other records. The petitioner thereafter moved this Court by filing the present writ petition challenging, inter alia, the jurisdiction of the Commissioner to initiate proceedings for suo motu revision under sub-section (1) of section 21 of the Act as also the interpretation given by the Tribunal to section 21(1) that any order can be taken up for revision by the Commissioner if he is of the view that it is prejudicial to the interest of the revenue even if there is no error in the same. The petitioner has also challenged the finding of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be based on materials available on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such actions will be against the well-accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasijudicial controversies as it must in other spheres of human activity. (See Parashuram Pottery Works Co. Ltd. v. Income-tax Officer [1977] 106 ITR 1 (SC), at page 10). As observed in Sirpur Paper Mills Ltd. v. Income-tax Officer [1978] 114 ITR 404 (AP), by Raghuveer, J. (as his Lordship then was), the department cannot be permitted to begin fresh litigations because of new views they entertain on facts or new versions which they present as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s section does not visualise a case of substitution of judgment of the Commissioner for that of the officer, who passed the order, unless the decision of the subordinate officer is held to be erroneous. Cases may be visualised where assessing officer while making an assessment examines the accounts, makes his enquiries, applies his mind to the facts and circumstances of the case and determines the turnover either by accepting the accounts or by making some estimates himself. The Commissioner on perusal of the records may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the turnover at a higher figure than the one determined by the assessing officer. That would not vest the Commissioner with power to re-examine the accounts and determine the turnover himself at a higher figure. It is because the officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equisites are present. If not, he has no authority to initiate proceedings for revision. Exercise of power of suo motu revision under such circumstances will amount to arbitrary exercise of power. It is well-settled that when exercise of statutory power is dependent upon the existence of certain objective facts, the authority before exercising such power must have materials on records to satisfy it in that regard. If the action of the authority is challenged before the court it would be open to the courts to examine whether the relevant objective factors are available from the records called for and examined by such authority. Our aforesaid conclusion gets full support from a decision of Sabyasachi Mukharji, J. in Russell Properties Pvt. Ltd. v. A. Chowdhury, Addl. Commissioner of Income-tax [1977] 109 ITR 229 (Cal). In our opinion any other view in the matter will amount to giving unbridled and arbitrary power to revising authority to initiate proceedings for revision in every case and start re-examination and fresh enquiries in matters which have already been concluded under the law. As already stated it is quasijudicial power hedged with limitation and has to be exercised subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -examination of the Commissioner. We have given our careful consideration to the circumstances in which the Commissioner initiated the proceedings for suo motu revision and we are constrained to observe that it does not justify the exercise of power under sub-section (1) of section 21. Admittedly the officer had made all the necessary enquiries and examined the records. Not writing the order in the form or manner the Commissioner would have liked him to write, would not make the order erroneous. There is no provision in the Act or the Rules requiring the officer to write the order in particular form or to record particular facts, calculations, etc., in his order. The assessing officer performs a quasi-judicial function and till he acts as such, makes the requisite enquiries, examines the materials and comes to a quasijudicial conclusion his order cannot be branded as erroneous. Besides, there is no material to show as to how by non-mentioning of the details or reconciliation, etc., obtained after the scrutiny of the records, etc., in the order of assessment, any prejudice has been caused to the revenue. There is nothing to justify an inference that more tax could have been exigible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. We are distressed to note the way a seniormost functionary of the department has acted in the matter. If a person is required to appear or to produce some accounts or documents in connection with any proceeding and he applies for time, the authority concerned may decide whether to extend the time or not and may allow or reject the same. This is a quasi-judicial act and has to be performed accordingly. If the prayer is rejected, natural consequences will follow and the matter may be decided ex parts on the basis of the materials on record. The party may thereby lose the opportunity of appearing and showing cause against the proposed action. But that does not make the person applying for time an offender. That is stretching the law too far. Besides, the facts of the instant case indicate that the power of prosecution which is a very drastic power has been used in the light-hearted manner without even caring for the elementary principles of law that in order to saddle a person with a criminal liability and to charge him with an offence punishable with imprisonment, mere breach of any statutory requirement is not enough. We find it difficult to approve the action of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 21 of the Indian Penal Code, 1860". The authorities that can be appointed to assist the Commissioner have been specified in rule 4 of the Tripura Sales Tax Rules, 1976. Rule 4 is reproduced below: "4. Taxing authorities.-(1) There shall be the following authorities to assist the Commissioner- (i) Assistant Commissioner of Taxes. (ii) Superintendent of Taxes. (iii) Inspector of Taxes. (iv) Any other persons appointed as such by the State Government. (2) Subject to the provisions of the Act and the Rules made thereunder, the Commissioner may, by notification in the Official Gazette, delegate the powers to be exercised by above classes of officers and shall specify the area or the person in respect of which powers are to be exercised by each of the above classes of officers". Under the Act, all powers are vested in the Commissioner, who is empowered under section 43 of the Act to delegate the same to any person appointed under sub-section (1) of section 4 to assist him. Section 43 reads as follows: "43. Delegation of Commissioner's powers.-The Commissioner may, subject to such restrictions and conditions as may be prescribed, delegate, by notification in the O ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
