TMI Blog1999 (8) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... February 28, 1990. Since tax deducted at source was more than tax liability fixed at 4 per cent, an application for refund under section 14 read with rule 36 was filed on January 19, 1990. On August 11, 1992, suo motu revision in terms of rule 80 was initiated by the Assistant Commissioner only against order of assessment passed under the Act. By order dated September 18, 1992, the proceeding was dropped by a reasoned order by the Assistant Commissioner of Sales Tax, Puri Range, Puri. On May 12, 1993 O.J.C. No. 3773 of 1993 was filed for early disposal of refund application. On August 19, 1993, the said writ application was disposed of with a direction to dispose of the refund application within a month. Time was extended on an application moved by the Revenue till the end of November, 1993. On January 10, 1994, the Commissioner issued another notice under rule 80 of the Rules. Petitioner submitted his reply to the effect that once power of suo motu revision under rule 80 has been exercised by a delegatee with powers of the Commissioner under section 27, the Commissioner does not possess residual power to be exercised by him. Reference was made to a decision of this Court in M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orissa), is that the power under rule 80 has not been delegated, and in any event the delegator still retains the original power. 6.. With reference to the notification delegating power, it is stated by the learned counsel for petitioner that section 23(4)(a) deals with both suo motu power of revision and also the power to revise any order made under the Act or rule made thereunder by any person other than the Tribunal appointed under sub-section (3) of section 3 to assist the Commissioner upon an application by a dealer or person. Therefore, power of revision as available under section 23(4)(a) has been delegated. The notification reads as follows: Notification No. I-ST-76/73 14171 dated the 3rd August, 1963 In exercise of powers conferred by section 17, read with clause (d) of subsection (4) of section 23 of the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947) I, S.M.H. Burney, I.A.S., Commissioner of Sales Tax, Orissa, with the prior approval of the State Government do hereby delegate my powers and duties under the said Act and the rule framed thereunder as specified in the Schedule hereto annexed to the Assistant Commissioner of Sales Tax and direct that the said powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Gujarat Sales Tax Act, the Commissioner has power of revision of any order passed by any officer appointed to assist him on his own motion. According to section 27(2) of the aforesaid Act, Deputy Commissioners, Assistant Commissioners and Sales Tax Officers were appointed to assist the Commissioner. According to sub-section (5) thereof, the Commissioner is authorised to delegate powers in favour of a Deputy Commissioner and after such delegation the Deputy Commissioner is authorised to perform all functions of the Commissioner delegated to him. According to sub-section (7) thereof, the State Government can delegate functions of the Commissioner to Additional Commissioners. In view of the aforesaid provisions, it was held that suo motu power of revision delegated to the Additional Commissioner or the Deputy Commissioner can be exercised by them and their orders passed in revision cannot further be revised by the Commissioner. The second aspect does not also present any difficulty. As would appear from section 29(2)(s)(ii), framing of rules is permissible according to law to lay down the procedure for appeals and revisions. In the guise of framing rules substantive law giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal- (i) if the order was passed by the Commissioner, to the High Court, and (ii) if the order was passed by any authority subordinate to the Commissioner, to the Commissioner. (cc) All orders passed under this sub-section shall, subject to orders passed in an appeal, if any, be final. (d) Notwithstanding anything contained in section 17, the Commissioner shall not, except with the prior approval of the State Government delegate his powers under this sub-section to any other person appointed under subsection (3) of section 3 to assist him. Rule 79: Application to Commissioner for revision.-The application to the Commissioner for revision of an order passed by an Assistant Sales Tax Officer or a Sales Tax Officer, or an Assistant Commissioner, as the case may be, may be filed by the dealer within thirty days from the date of receipt by him of such order: Provided that no such application shall be entertained by the Commissioner in respect of any order against which the applicant has a right of appeal under sub-section (1) or sub-section (3) of section 23: Provided further that the Commissioner may admit an application for revision received after the said period if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant, but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate. [See Battelley v. Finsbury Borough Council: (1958) 56 LCR 165)]. 9.. In Corpus Juris Secundum, Volume 26, delegate has been described as follows: As a noun, a person sent and empowered to act for another, one deputed to represent another in a more popular but less accurate sense, a regularly selected member of a regular party convention. As a verb, in its general sense and as generally used, the term does not imply, or point to, a giving up of authority, but rather the conferring authority upon some one else. At common law, it is the transfer of authority by one person to another, the act of making or commissioning a delegate. Expression delegation of authority or power is a term which like the word delegate does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. In Collins Cobuild English Dictionary the word delegate has been stated to be a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise the power of revision under rule 80. Exercise of power under rule 80 is not same as exercised by him under rule 79. It is to be noted here that the Legislature in its wisdom put a seal of finality on all orders passed under subsection (4) of section 23 of the Act. 11.. Under clause (c) of sub-section (4) of section 23 the dealer or person, as the case may be, the State Government aggrieved by any order passed by the Commissioner on his own motion may, within sixty days from the date of receipt of such order, prefer an appeal. If the order is passed by the Commissioner, the appeal is to be filed before the High Court, and if the order is passed by any authority subordinate to the Commissioner, to the Commissioner. It is, however, to be noted that the right of appeal has been conferred in respect of an order passed by the Commissioner on his own motion. The expression Commissioner as defined in the Rules means the Commissioner of Sales Tax and includes any officer to whom the Commissioner of Sales Tax may delegate under section 17 his powers and duties under the Act, as provided in rule 2(e). Further, under section 23(4)(d) notwithstanding anything contained in sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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