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TMI Blog2008 (3) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Bihar Finance Act, 1981 (in short, "the Act of 1981") and also under section 7 of the Central Sales Tax Act, 1956 (in short, "the Act of 1956"). The petitioner filed return and the respondent No. 5, Deputy Commissioner, Commercial Taxes, passed order dated January 30, 1996 both under the Act of 1981 and the Act of 1956. Under the Act of 1956, respondent No. 5 rejected the claim of the petitioner made under sections 6(2) and 5(2) of the Central Sales Tax Act and raised demand. Similarly, in the State Act also respondent No. 5 passed final order and raised demand. Aggrieved by the said orders, the petitionerassessee preferred appeal before the Joint Commissioner, Commercial Taxes (Appeals), Ranchi Division, Ranchi. It is stated that in the said appeals State of Bihar was the party-respondent represented by the Commissioner of Commercial Taxes. The aforesaid appeals were heard by he Joint Commissioner, Commercial Taxes and after hearing the petitioner and the respondents, passed final order and remanded the matter back to the assessing officer for passing fresh order of assessment for the year 1987-88 under both the State Act and the Central Act in terms of order dated Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bihar Sales Tax Rules. The learned counsel submitted that if the Commissioner is vested with the power of suo motu revision under section 46(4) of the Act against the appellate proceeding and the appellate order, it will be serious injustice and hardship and the provision of revision will become nugatory and redundant. The learned counsel then submitted that initiation of suo motu revision without calling for and examining the record of the concerned appellate proceeding is arbitrary exercise of jurisdiction. The learned counsel submitted that the appellate authority remanded back the matter to the assessing officer for passing fresh assessment order and while the assessment proceeding was in progress, the suo motu power was arbitrarily exercised by the Commissioner, Commercial Taxes which is nothing but colourable exercise of power. The learned counsel relied upon various decisions, viz., in the case of Commissioner of Income-tax v. National Taj Traders [1980] 121 ITR 535 (SC); AIR 1980 SC 485; [1980] 1 SCC 370, in the case of Bhudan Singh v. Nabi Bux AIR 1970 SC 1880; [1969] 2 SCC 481, in the case of Tirath Singh v. Bachittar Singh AIR 1955 SC 830, in the case of Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a Superintendent or Assistant Superintendent, (b) by the Deputy Commissioner, if the said order has been passed by the Appellate Assistant Commissioner or Assistant Commissioner, and (c) by the Commissioner, if the said order has been passed by the Deputy Commissioner. (4) Every application for revision under this section shall be filed within sixty days of the passing of the order which is sought to be revised, but the authority to whom the application lies may admit it after the expiry of the said period of sixty days if it is satisfied that the applicant had sufficient cause for not filling the application within the said period. (5) The Commissioner may call for and examine the record of any proceeding under this Act in which any order has been passed by any other authority appointed under section 8, for the purpose of satisfying himself as to the legality or propriety of such order and may, after examining the record and making or causing to be made such enquiry as he may deem to be necessary, pass any order which he thinks proper: Provided that no action under this section shall be initiated except before the expiry of four years from the date of the order which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, any order passed under this Ordinance or the Rules made thereunder, other than an order passed by the Commissioner under sub-section (5) of section 8, or an order under sub-section (1) or (2) or an order against which an appeal has been provided in section 40, may, on application, be revised, (a) by the Appellate Assistant Commissioner, if the said order has been passed by a Superintendent or Assistant Superintendent; (b) by the Deputy Commissioner, if the said order has been passed by the Appellate Assistant Commissioner or Assistant Commissioner; and (c) by the Commissioner, if the said order has been passed by the Deputy Commissioner. (4) Every application for revision under this section shall be filed within 60 days of the communication of the order which is sought to be revised, but the authority to whom the application lies may admit it after the expiry of the said period of 60 days if it is satisfied that the applicant had sufficient cause for not filing the application within the said period. (5) The Commissioner may call for and examine the record of any proceeding under this Ordinance, in which any order has been passed by any other authority appointed under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he may deem to be necessary, pass any order which he thinks proper: Provided that where an application is filed seeking revision of any order, such an application shall be entertained only if made within ninety days of the date of communication of the order sought to be revised. (5) No order under this section shall be passed without giving the appellant as also the authority whose order is sought to be revised or their representative, a reasonable opportunity of being heard. (6) Any revision against an appellate order filed and pending before the Joint Commissioner or a revision against any other order filed and pending before the Deputy Commissioner since before the enforcement of this part shall be deemed to have been filed and/or transferred respectively to the Tribunal and Joint Commissioner; and any revision relating to a period prior to the enforcement of this part against an appellate order, or against any other order passed by an authority not above the rank of Deputy Commissioner shall, after the enforcement of this part, be respectively filed before the Tribunal and the Joint Commissioner." In 1984, section 46 of 1981 Act was substituted by section 10(2) of the Amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate proceeding or appellate order. The learned counsel put heavy reliance on the rule 30 of the Bihar Sales Tax Rules and submitted that on reading the power of revision under section 46 of the Act along with the rule 30 of the Rules, it is abundantly clear that the only remedy available to the Commissioner is to move before the Tribunal for revision against the order passed by the appellate authority. The learned counsel further submitted that since both the assessee and the Revenue have equal right to file revision before the Tribunal against the order passed by the appellate authority, a suo motu revision cannot be initiated for the reason that if such power is vested with the Commissioner then the Commissioner in exercise of power of revision can undo judgment rendered by the appellate authority if it goes against the Revenue. In this connection, the learned counsel relied upon the decision of the Supreme Court in the case of Girnar Traders v. State of Maharashtra [2007] 7 SCC 555. The learned counsel further submitted that the entire statute particularly section 46 shall be read together with the rule in order to give correct meaning and object of the provisions of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn motion, the record of any order passed by any person or person subordinate to him for the purpose of satisfying himself as to the legality or propriety of such order and to pass such order as he may deem fit and proper after examining the record. This special power of revision provided under section 46(4) of the Act is intended to be exercised as one of the superintendences so as to enable the Commissioner to check and correct the orders passed by the subordinate authority including the appellate authority. The decision relied upon by Mr. Poddar, as rendered in the case of Girnar Traders v. State of Maharashtra [2007] 7 SCC 555 will not be applicable in the present case. The power of revisional authority has not been dealt with in that decision which related to interpretation of different provisions of the land acquisition and Maharashtra Regional and Town Planning Act, 1966. The other decisions relied upon by the petitioner also will not be of any help to the petitioner. In the case of Commissioner of Sales Tax, Orissa v. Halari Store [1997] 107 STC 579 (SC); [1997] 7 SCC 715, the question of law raised by the petitioner has been completely answered by the Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (4) of section 23 of the Act places limitation on the Commissioner's suo motu revisional powers to revise an appellate order is concerned, a reading of the aforesaid proviso would show that the limitation on the revisional power of the Commissioner comes in only where a dealer or person filing the revision having a remedy by way of appeal under sub-section (3) of (1)See para 9 at page 584 of [1997] 107 STC (2)See para 10 at page 584 of [1979] 107 STC section 23 of the Act, did not avail of such remedy. However, it does not curtail the suo motu revisional power of the Commissioner of Sales Tax to revise an appellate order passed under the Act. The proviso to section 23(4)(a) contemplates that the Commissioner shall not exercise any revisional jurisdiction at the instance of a dealer or person when he has a remedy by way of an appeal under sub-section (3) of section 23 of the Act. Thus, the Commissioner is not required to entertain an application under section 23(4)(a) of the Act if the dealer or person instead of filing an appeal before the appellate authority has invoked revisional jurisdiction of the Commissioner. But, the same is not the position where the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested to the Commissioner to exercise revisional jurisdiction. But no time-limit is prescribed to exercise such suo motu power unlike 90 days under section 46(3) of the Act. It does not mean that it is a continuing power authorised to the concerned authority. From a bare perusal of the provision of law in totality and co-jointly it can be apparently inferred that when the concerned authority does not get an opportunity to exercise the revisional power within the statutory period of 90 days upon an application being made before it, then suo motu revisional power must also be exercised within the reasonable period of time. If some time-limit is not specified for the exercise of the power the possibility of irregular exercise of power on whim and caprice of authority cannot be ruled out. In absence of any specific period of statutory limit to exercise such power it would tantamount to arbitrary exercise of power which is not the intention of the legislation. Because unfettered power leads to corruption. Suo motu acts and power is to be exercised judicially, i.e., ejusdem generis. Therefore, the suo motu revisional power not to be arbitrary, fanciful and oppressive, it must be guided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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