TMI Blog2006 (12) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of ₹ 5,191. The Act contains a provision for suo motu revision under section 21 of the 1948 Act, which reads as under: 21. (1) The Commissioner may on his own motion call for the record of any proceedings which are pending before, or have been disposed of by any authority subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein and may pass such order in relation thereto as he may think fit. . . . In the provision for assessment, i.e., section 11 of the 1948 Act, period of three years from the last date for filing return is prescribed for completing assessment. It has been submitted in the petition that the period prescribed for completing assessment was relevant for keeping the books of account and the petitioner was not required to preserve books of account thereafter. Reliance has been placed on the judgment of the honourable Supreme Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur [1963] 14 STC 976. Further contention raised is that the said period should be considered to be relevant period for exercise of suo motu revisional jurisdiction and if the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the proceedings under section 21(1) of the Punjab Act. The question as to whether the jurisdiction of the Commissioner under section 21(1) of the Punjab Act is subject to the period of limitation prescribed under section 11A of the Punjab Act stands already rejected by two decisions of this court in Narain Singh Mohinder Singh v. State of Punjab [1963] 14 STC 610 and the National Rayon Corporation Limited v. Additional Assistant Excise and Taxation Commissioner, Punjab [1964] 15 STC 746. In National Rayon Corporation Limited's case [1964] 15 STC 746 (P H), it was held as under: '. . . It is obvious that if the Legislature intended to limit the power of the Commissioner under section 21 to a period of three years after the close of an assessment year or even after the disposal of the proceedings by an Assessing Authority, it could, and in the circumstances almost certainly would, have said so in section 21, for the Legislature was aware that a period of limitation had, for purposes of reassessment by an Assessing Authority, been fixed in section 11-A. The conclusion, in my opinion, must be that the Legislature did not intend to fetter the power of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the passing of an order of assessment of tax is really an independent legislative provision of the Act and though it has been inserted by the draftsmen in the form of a 'proviso' in section 12(6), it is in substance not a real 'proviso' to the main provision. That independent legislative provision lays down that no order 'assessing the amount of tax shall be passed after the lapse of 36 months from the expiry of the period' for which the assessment is made. The provision is not in terms limited only to orders of assessment made under section 12 but on its language applies to and governs any order assessing the amount of tax which would manifestly include an assessment under any provision of the Act besides section 12. The consequence is that even if an order of assessment made in exercise of powers of revision under section 23 is held to be not an order made under section 12, this limitation of 36 months from the expiry of the period for which the assessment is made will still be applicable. In S. B. Gurbaksh Singh v. Union of India [1976] 37 STC 425 (SC), the matter was considered by the honourable Supreme Court with reference to the Bengal Finance (Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount after lapse of long period of time. We find no substance in the submission. While it is true that rule 12 does not prescribe any period within which recovery of any duty as contemplated by the rule is to be made, but that by itself does not render the rule unreasonable or violative of article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period would depend upon the facts of each case. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be open to the assessee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice or demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case. In State of Gujarat v. Patel Raghav Natha AIR 1969 SC 1297, the honourable Supreme Court considered the exercise of revisional power under section 211 of the Bombay Land Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act). Hence, it appears without stating from what date the period of limitation starts and with what period the suo motu powers is to be exercised, in sub-section (4) of section 50-B of the Act, the words 'at any time' are used so that the suo motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of parties. Use of the words 'at any time' in sub-section (4) of section 50B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of dictionary meaning of words 'at any time', the suo motu power under sub-section (4) of section 50B of the Act could be exercised even after decades and then it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt as to how the use of the words 'at any time' in sub-section (4) of section 50-B of the Act should be understood. In the impugned order the division Bench of the High Court approves and affirms the decision of the learned single Judge. Where a statute provides any suo motu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is 'reasonable time' has to be determined on the facts of each case. In State of H.P. v. Rajkumar Brijender Singh AIR 2004 SC 3218, referring to section 20 of the H.P. Ceiling on Land Holdings Act, 1973, conferring suo motu power on the Financial Commissioner, interpreting the words at any time , it was held that such power had to be exercised within a reasonable time. The relevant observations are: 6. . . It is true that sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time-limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fix period of limitation may be laid but unreasonable delay in exercise of the power would tend to und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
