9911796707
TMI Blog2008 (3) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... oner also sought for quashing the order dated November 26, 2007 passed by respondent No.3-Joint Commissioner of Commercial Taxes by which he has set aside the revised assessment order dated December 26, 2003. In W.P. (T) No. 5892 of 2007, the petitioner has sought for a writ of mandamus directing the respondents to refund the entire amount in respect of the petitioner's claim under the provisions of section 15(b) of the Central Sales Tax Act for the assessment years 1984-1985 to 2000-01 and also for the grant of interest. Pending the writ petition, by filing interlocutory applications amendment was prayed for in the writ petition seeking further relief for quashing the notice dated November 26, 2007 issued by the Joint Commissioner of Commercial Taxes, Dhanbad, purported to be under section 46(4) of the Bihar Finance Act, 1981 on the ground, inter alia, that the Joint Commissioner has no jurisdiction to entertain an application under section 46(4) of the Bihar Finance Act, 1981 and further for quashing the final order dated December 18, 2007 passed by respondent No. 3, the Joint Commissioner, by which he has set aside the revised assessment order. In W.P. (T) No. 5895 of 2007, si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that refund would be made only after the disposal of the section 46(4) proceedings which had been initiated against the petitioner. It is alleged by the petitioner that on October 10, 2006, the Deputy Commissioner of Commercial Taxes made an application before the Joint Commissioner for initiation of suo motu proceeding under section 46(4) of the Act. W.P. (T) No. 5895 of 2007: The case of the petitioner is that the petitioner is engaged in processing of coal to coke. This case also relates to financial years between 1984-85 to 2000-01. The revised assessment proceeding was initiated by the respondents which was completed and certain liability was fastened upon the petitioner. Aggrieved by the said reassessment proceedings, the petitioner challenged the said order before the Joint Commissioner of Commercial Taxes (Appeals) which was disposed of by him vide order dated May 3, 2004 remanding the matter to the assessing officer for fresh assessment. It is stated that pursuant to the order of remand, the assessing officer passed final order on December 14th and 29th, 2005 determining the liability of the petitioner. Consequent thereto, the petitioner was served with various demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act on the basis of application filed by the Revenue and secondly, that the assessment order which has attained finality long back, cannot be reopened on the basis of the Supreme Court decisions. Mr. Mittal, learned counsel appearing for the petitioner-assessee, made the following submissions: (i) The Joint Commissioner of Commercial Taxes (Admn.) (in short, "the Joint Commissioner") has been conferred jurisdiction to initiate suo motu revision against the orders of the assessing officer. The power has been delegated in terms of notification issued by the State of Bihar dated June 28, 1986. The said notification does not confer power upon the Joint Commissioner under section 46(4) to exercise power of revision on an application. (ii) The power to entertain application for initiating revision proceedings has been retained by the Commissioner, Commercial Taxes and such power has not been delegated to the Joint Commissioner. (iii) Referring to section 46(3) of the Bihar Finance Act, 1981 which prescribes 90 days limitation for making an application for initiation of revision proceedings, learned counsel submitted that if any application for revision under section 46(4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Patna High Court in the case of Rakesh Kumar v. State of Bihar [1995] BRLJ 152. Before adverting to the rival contentions of the parties, it would be useful first to trace out the legislative history of section 46(4) of the Act. In the old 1959 Act, i.e., Bihar Sales Tax Act, 1959, the power of revision was given under section 31 of the said Act. Section 31 of 1959 Act reads as under: "(1) Subject to such Rules as may be made by the State Government under this Act, an order passed on an appeal under sub-section (1) or (2) of section 30 may, on application, be revised- (a) by the Deputy Commissioner, if the said order has been passed by the Appellate Assistant Commissioner, and (b) by the Board, if the said order has been passed by the Deputy Commissioner or the Commissioner. (2) Subject as aforesaid, any order passed by the Deputy Commissioner under sub-section (1) or by the Commissioner under subsection (5) may, on application, be revised by the Board. (3) Subject as aforesaid, any order passed under this Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was vested with the power to call for and examine any record of proceeding and pass any order thereon. The statute did not specify whether this power of Commissioner could be invoked on application by an assessee or any other person. However, the position was made clear in 1977 Ordinance according to which the powers could be invoked even on application, provided the application was made within 90 days of the order challenged. A limitation of four years from the date of impugned order prescribed by 1959 Act and 1976 Ordinance for intervention by the Commissioner was omitted in the 1977 Ordinance. For better appreciation, firstly we shall quote section 41 of the Bihar Sales Tax Ordinance, 1976 which reads as under: "41. Revision.-(1) Subject to such Rules as may be made by the State Government under this Ordinance, an order passed on an application under sub-section (1) or (2) of section 40 may, on application, be revised- (a) by the Deputy Commissioner, if the said order has been passed by the Appellate Assistant Commissioner, and (b) by the Tribunal, if the said order has been passed by the Deputy Commissioner or the Commissioner. (2) Subject as aforesaid, any order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an appeal under sub-section (1) or (2) of section 45 may, on application, be revised by the Tribunal. (2) Subject as aforesaid any order passed under this part or the Rules made thereunder, other than an order passed by the Commissioner under sub-section (5) of section 9 or an order against which an appeal has been provided in section 45 may, on application, be revised- (a) by the Joint Commissioner, if the said order has been passed by an authority not above the rank of Deputy Commissioner; and (b) by the Tribunal if the said order has been passed by the Joint Commissioner or Commissioner. (3) Every application for revision under this section shall be filed within sixty days of the communication of the order which is sought to be revised, but where the authority to whom the application lies is satisfied that the applicant has sufficient cause for not applying within time, it may condone the delay. (4) the Commissioner may at any time but before the expiry of four years from the date of the order, either on his motion or on application, call for and examine the record of any proceeding in which any order has been passed by any other authority appointed under section 9, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be entertained only if made within ninety days of the date of communication of the order sought to be revised: Provided further that where the Commissioner is satisfied that the applicant had sufficient cause for not applying within time, he may condone the delay." In section 7 of the Bihar Finance (Amendment) Ordinance, 1989, clause (b) of sub-section (4) has been deleted with effect from May, 1989. The position that now stands is that section 46 provides for a revision of all appellate and other orders passed by the various authorities under the Act. The power of revision is vested with the Tribunal and the Joint Commissioner which power shall be exercised only on application by any person aggrieved, but subject to time-limit prescribed in sub-section (3), i.e., 90 days of the communication of the order. By the said provision, the Commissioner has also been vested extraordinary power to initiate suo motu revision proceeding at any time and no limitation has been prescribed. However, power of the Commissioner to initiate suo motu revision proceeding has been delegated to the Joint Commissioner of Commercial Taxes (Admn.) against the orders of the officers lower th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made in this behalf,- (a) the Commissioner may, of his own motion, call for and examine the record of any order passed (including an order passed in appeal) under this Act or the Rules made thereunder by any officer or person subordinate to him and pass such order thereon as he thinks just and proper: Provided that no notice in the prescribed form shall be served by the Commissioner under this clause after the expiry of three years from the date of the communication of the order sought to be revised and no order in revision shall be made by him hereunder after the expiry of five years from such date: Provided further that the period of limitation of five years shall not apply in a case where the point or points involved in the revision proceedings is the subject-matter of any proceedings pending before the Tribunal, High Court or Supreme Court; and in such a case it shall be competent for the Commissioner to decide the revision proceedings within eighteen months from the date of notice of hearing served on the assessee after the conclusion of the proceeding in the Tribunal, High Court, or as the case may be, Supreme Court. (1A) Notwithstanding anything contained in this sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake which has been brought to his notice by any person affected by such order: Provided that no such rectification shall be made, if it has the effect of enhancing the tax or reducing the amount of refund, unless the Commissioner or the person appointed under sub-section (2) of section 9 to assist him, as the case may be, has given notice in writing to the person likely to be affected by the order of his intention to do so and has allowed such person a reasonable opportunity of being heard. (2) The provisions of sub-section (1) shall apply to the rectification of a mistake by an appellate authority under section 43 as they apply to the rectification of a mistake by the Commissioner. (3) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1) or sub-section (2) the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under sub-section (1) or subsection (2), as the case may be, in relation to any matter other than the matter which has been so considered and decided. (4) Where any such rectification has the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed 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. Similarly, sub-section (3) of section 31 confers power upon the Tribunal to entertain revision on an application made to him against the order of the Commissioner within ninety days from the date of communication of the order and may call for and examine the record and pass such order as he thinks just and proper. Section 21 of the Karnataka Sales Tax Act, 1957 confers power to the Joint Commissioner who may of his own motion call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer not above the rank of a Deputy Commissioner for the purpose of satisfying himself as to the legality or propriety of such order. Such power shall be exercised within a period of four years from the date on which order was passed. It further provides that the power under this section shall not be exercisable in respect of matters subject to appeal under section 20 of the Act. Section 35 of the Kerala General Sales Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order has been filed: Provided further, that no revision shall lie- (i) against an order determining the liability of a dealer to pay tax or against a notice issued under this Act for assessment except after an assessment order is passed; and (ii) against an order passed under section 72. Explanation.-An order by the Commissioner, declining interference shall not be deemed to be an order prejudicial to the dealer or person. (2) The Commissioner may on his own motion call for the record of any proceeding in which any order under sub-section (1) has been passed by an officer to whom the Commissioner has delegated his powers under section 62 in pursuance of the provisions of section 46 and on receipt of the record may make such enquiry or cause such enquiry to be made as he considers necessary and subject to the other provisions of this Act may pass such order thereon not being an order prejudicial to the dealer or person as he thinks fit. (3) The Commissioner may on his own motion or on information received call for and examine the record of any proceeding under this Act if he considers that any order passed therein by any person appointed under section 3 to assist him includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the proceedings had been initiated by him under clause (b) of sub-section (1): Provided that no such direction shall be given unless- (a) the dealer has exhausted the remedies available to him under section 61, sub-section (1) of this section, section 71 or section 72 as the case may be, or the period within which any remedy under the aforesaid provision can be sought has expired; and, or (b) his application for revision under sub-section (1) has been rejected on merits: Provided further that such an application shall be entertained by the State Government only once." Section 23 of the Orissa Sales Tax Act, 1947 deals with appeal and revision. Sub-section (1) of section 23 prescribes for preferring appeal against the order of assessment. Sub-section (2) of section 23 prescribes the power of the appellate authority. Sub-section (3) of section 23 provides that any dealer or the State Government, dissatisfied with an appellate order, may within sixty days from the date of receipt of such order, prefer an appeal to the Tribunal. Sub-section (4) of section 23 confers power upon the Commissioner to revise, on his own motion, any order passed by any other authority other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1994 confers power of revision upon the Commissioner. According to this section, the Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Assistant Commissioner, Commercial Taxes Officer, Assistant Commercial Taxes Officer or incharge of a check-post is erroneous and is prejudicial to the interest of the State revenue, he may, after having made or after having caused to be made such inquiry as he considers necessary, and having given to the dealer a reasonable opportunity of being heard, pass such order or issue such direction as he deems proper under the circumstances of the case. Sub-section (2) of section 87 prescribes limitation of five years after expiry of which, the Commissioner cannot exercise that power. Similarly, section 33 of the Tamil Nadu General Sales Tax Act, 1959 confers power of revision upon the Deputy Commissioner. Section 34 prescribes special power of the Joint Commissioner of Commercial Taxes. According to this section, the Joint Commissioner of Commercial Taxes, may, of his own motion, call for and examine an order passed by the authority prescribed in different se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in clause (c). (3) No order under this section adversely affecting a person shall be passed unless that person has/had a reasonable opportunity of being heard. (4) In computing the period referred to in clause (c) of subsection (2), the time during which the proceedings before the Joint Commissioner of Commercial Taxes remained stayed under the order of a Civil Court or other competent authority shall be excluded." Section 10B of the Uttar Pradesh Trade Tax Act, 1948 lays down the provision of revision which reads as under: "10B. Revision by Commissioner.-(1) The Commissioner or such other officer not below the rank of Deputy Commissioner as may be authorised in this behalf by the State Government by notification may call for and examine the record relating to any order (other than an order mentioned in section 10A) passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect thereto as he thinks fit. (2) No order under sub-section (1) affecting the interest of a party adversely shall be passed unless he has been given a reasonable opportunity of being heard. (3) No ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The Karnataka Sales Tax Act confers power to the Joint Commissioner to suo motu revise the order passed by any authority subordinate to him within four years from the date on which order was passed. However, it has been categorically made clear that such power shall not be exercised in respect of matters subject to appeal under section 20 of the Act. In the same line, the Madhya Pradesh Act although confers power upon the Commissioner to suo motu initiate proceeding and make enquiry and pass order, but such order may not be prejudicial to the dealer. The Orissa Sales Tax Act also put a restriction that such application or revision shall not be entertained by the Commissioner if the dealer or person filing such application having remedy by way of appeal. Section 34 of the Tamil Nadu General Sales Tax Act, 1959 although confers power upon the Joint Commissioner to revise or modify the order passed by any authority subordinate to him of his own motion, but the Joint Commissioner shall not initiate such proceeding if the order has been made subject of an appeal to the Appellate Tribunal or of a revision in the Special Tribunal. Coming back to the provisions of the Act in question, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity holding a further enquiry or directing such an inquiry to be held by some other appropriate authority. On the question regarding limitation of time within which such power should be exercised, their Lordships held (at page 399 of 21 STC): "7. The last submission made by Mr. Desai was that, if it be held that the revisional powers are sought to be exercised under the Act of 1946, it should be held that the proceedings sought to be instituted are barred by time, because limitation of a reasonable time, within which the revisional powers are to be exercised, must be implied in the statute itself. Section 22 of the Act of 1946 and section 31 of the Act of 1953 do not lay down any limitation for exercise of the power of revision by a Deputy Commissioner suo motu, and we are not prepared to accept that any such limitation must be necessarily read in the two Acts. In support of his proposition that such a limitation must be read by us, Mr. Desai referred to the decision of this court in State of Orissa v. Debaki Debi [1964] 15 STC 153. That case, however, has no relevance at all, because, in the Orissa Sales Tax Act, there was a proviso in general terms laying down that no order &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Kerala then moved the Supreme Court against the order of the Kerala High Court. The Supreme Court considering the jurisdiction of the revising authority, held as under (at page 883 of 16 STC): "15. Turning then to the jurisdiction which the revising authority may exercise under section 12(2), attention must first be directed to the phraseology used by the Legislature. The Deputy Commissioner is thereby invested with power to satisfy himself about the legality or propriety of any order passed or proceeding recorded by any officer subordinate to him, or the regularity of any proceeding of such officer, and to pass such orders with respect thereto as he thinks it. For exercising this power, he may suo motu, or on application, call for and examine the record of any proceeding or order. There is no doubt that the revising authority may only call for the record of the order or the proceeding, and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding. But there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue without any success. Ultimately he asked for a reference to be made under section 25 of the Act to the High Court. The question formulated was "whether the Superintendent of Sales Tax had jurisdiction to go beyond the terms of the remand order and to levy Bihar sales tax on the aforesaid dispatch of chillis outside Bihar which had been exempted from tax by his superior officer". Answering the reference, the Division Bench held: "4. It was contended by the learned counsel appearing for the State of Bihar that the Deputy Commissioner, the revisional authority, though approached by the assessee for limited purposes in regard to which he felt aggrieved by the disallowance of his prayer by the lower appellate authority (the Assistant Commissioner of Commercial Taxes), had powers under the Act to revise the entire appellate order or to set it aside. He referred to section 24(4) of the Act which provides that, subject to such rules as may be prescribed and for reasons to be recorded in writing, the prescribed authority may, upon application or of its own motion, revise any order passed under this Act. Learned counsel relied upon the powers of the revising authority to revise an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal by the department, set aside the entire order of the Appellate Assistant Commissioner and directed him to decide the appeal afresh. On a reference to the High Court at the instance of the assessee on the question whether the Tribunal had jurisdiction to set aside the entire order of the Appellate Assistant Commissioner and direct him to dispose of the appeal afresh, Mysore High Court held that powers of the Tribunal are limited to the subject-matter of the appeal. The Tribunal had no power to make an enhancement beyond the figure fixed by the officer. It can only deal with the two additions relating to the gross profit but not with the other addition relating to unexplained stock and hence, had no jurisdiction to set aside the entire order of the Appellate Assistant Commissioner. In the case of Tel Utpadak Kendra v. Deputy Commissioner of Sales Tax [1981] 48 STC 248 (SC), the appellant is a partnership firm, carrying on the business of manufacturing and selling vegetable oil. The Sales Tax Officer estimated the turnover for the calendar year 1971 and made an order dated March 26, 1973, levying sales tax at Rs. 73,198.62 and a penalty of Rs. 36,197.64. On the same date, another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturers Ltd. [1976] 38 STC 78 (Bom). While allowing the appeal, their Lordships observed (at page 253 of 48 STC): "It is evident then that in a second appeal under sub-section (2) of section 55 of the Bombay Sales Tax Act, the Tribunal has power to enhance the assessment. That being so, plainly it is open to the Revenue to invoke that power in a pending second appeal filed by the dealer before the Tribunal. The High Court is in error in concluding that the power to enhance an assessment can be discovered only in the revisional jurisdiction of the Commissioner and nowhere else. The compulsion which drove the High Court to the construction placed by it on sub-section (1) of section 57 of the Act does not have substance, and the entire substratum underlying the High Court judgment must give way. On the view which finds favour with us we cannot approve of the law laid down on the point in Motor & Machinery Manufactures Ltd. [1976] 38 STC 78 (Bom) nor do we see any overlapping of, or conflict in, the powers of the Commissioner and the Tribunal inferred in Oriental Rubber Industries Pvt. Ltd. [1974] 34 STC 113 (SC). As regards the observation of this Court in Amritlal Bhogilal [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Commissioner finds that the order is erroneous so far as it is prejudicial to the interest of Revenue, it may pass such orders as it deems fit. The decision in the case of Ganga Properties [1979] 118 ITR 447 (Cal) came up for consideration before the Supreme Court in the case of Commissioner of Income-tax v. Shree Manjunathesware Packing Product and Camphor Works reported in [1998] 231 ITR 53; [1998] 1 SCC 598, wherein the Supreme Court held: 'Such a narrow interpretation of the word "record" was justified, in view of the object of the provision and the nature and scope of the power conferred upon the Commissioner. The revisional power conferred on the Commissioner under section 263 is of wide amplitude . . . Obviously, as a result of the enquiry he may come into possession of new material and he would be entitled to take that new material into account. If the material, which was not available to the Income-tax Officer when he made the assessment could thus be taken into consideration by the Commissioner after holding an enquiry, there is no reason why the material which had already come on record, though subsequent to the making of the assessment, cannot be taken into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able evidence, the said average price relied on by the Commissioner cannot be accepted as a lawful evidence for the aforesaid periods. The decision in respect of determining the sale price, therefore, cannot be upheld." In the case of Mukunda Dairy Products Pvt. Ltd. v. Commercial Tax Officer, Narasaraopet, Guntur [2006] 144 STC 177 (AP), the fact was that the petitioner-company was a dealer carrying business of sale and purchase of milk products. It was assessed under the Andhra Pradesh General Sales Tax Act, 1957. The assessing officer rejected the claim of the petitioner that the entire turnover is exempted from tax and accordingly, levied the tax. The petitioner preferred appeal. The appellate authority allowed the appeal and held that the cream produced and marketed by the petitioner through the process called "churning" is eligible for exemption as claimed by it. The order of the assessing authority was accordingly set aside. The petitioner thereafter filed representations including the representation requesting the Commercial Tax Officer to refund the amount deposited for maintaining the appeal. The petitioner again filed representation requesting the Commercial Tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, undisputedly such power cannot be exercised on the basis of application filed by the Deputy Commissioner of Commercial Taxes or any other authority when a regular revision by the Commissioner is provided under the Act on the basis of an application filed by the aggrieved party. In our considered opinion, therefore, initiation of suo motu revision proceeding on the basis of an application filed by the Deputy Commissioner of Commercial Taxes with specific request to revise the order, shall be wholly without jurisdiction for the reason that that jurisdiction is vested with the Commissioner, Commercial Taxes. The next question which needs consideration is as to within what time power of suo motu revision can be exercised by the authority. In the case of Government of A.P. v. Kalleti Chengaiah [1996] 9 SCC 211, the Supreme Court considering the time for exercising suo motu revisional power under the Tenancy Law observed: "4. It is settled law that the power of suo motu revision can be exercised within reasonable time. When it is held that the power may be exercised from time to time, what would be the reasonable time depends upon facts of each case. It is seen that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing authority to make a fresh assessment after such further inquiry as may be directed.' For exercise of the appellate power in any of the manners mentioned above, there is no limitation of time. If assessment can be reduced in appeal at any time it can be enhanced also without the fetter of time. If the assessment is set aside and the case remanded to the assessing authority to make a fresh assessment, then the authority, because of the proviso to section 11(2a), is obliged to make the fresh assessment within four years of the appellate order. Sub-section (3) of section 20 reads thus: 'Subject to such Rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assessment made or order passed under this Act or the Rules thereunder by a person appointed under section 3 to assist him, and subject as aforesaid, the Chief Commissioner may, in like manner, revise any order passed by the Commissioner.' The Commissioner can revise any assessment made or order passed under the Act including the order of the appellate authority. The limits of the revisional power are not circumscr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional powers was not encroaching upon the powers reserved to other authorities. The powers were not exercised for the purpose of assessing or reassessing an escaped turnover. The revisional powers were sought to be exercised to correct what appeared to be an incorrect order passed by an Assistant Collector and for such a purpose proceedings could not possibly have been taken under section 11A. In the instant case also, it could not be disputed that the view taken by the Assistant Commissioner in appeal was obviously wrong. The Commissioner while correcting that mistake in exercise of his revisional power was not doing anything which the Sales Tax Officer was empowered to do under section 11A. He was merely setting right the illegality in the appellate order." In the case of State of Gujarat v. Patel Ramjibhai Danabhai [1979] 44 STC 137 (SC); [1979] 3 SCC 347, the question that falls for consideration before the Supreme Court was as to whether the provisions of sections 33(6) and 35 of the Bombay Sales Tax Act, 1959, which are in pari materia with 1953 Act, offended article 14 of the Constitution of India and are void. Section 33(6) of the Act confers power upon the Commissioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving a rational nexus with the object of preventing tax evasion. 28.. The question of limitation apart, it cannot be said that the procedure provided in section 33(6) is more onerous than the one specified in section 35. The requirement as to the issue of a notice to the defaulter and giving of an opportunity of being heard is a common feature of both the sections. It is true that under section 33(6), the assessment is made on 'best judgment' basis. Nevertheless, it cannot be made arbitrarily or capriciously. It has to be made after taking into account all the relevant material gathered by the Taxation Officer or produced before him by the assessee in response to the notice. If an assessment under section 33(6) is made upon inadequate materials, but on honest and fair guess-work, then it will be but due to the deliberate default of the assessee in supplying the necessary information. The differential mode of assessment under section 33(6) is thus founded upon rational criteria." In the case of Bharat Steel Tubes Ltd. v. State of Haryana [1988] 70 STC 122 (SC); [1988] 3 SCC 478, answering the question as to whether order of assessment under the Punjab General Sales Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us, it would be appropriate to call upon the assessing authority to complete all these pending assessments within a total period of four months from today on the basis of available material in the record before him and such other material as the authority may obtain. We, however, make it clear that such assessment has to be only under section 11(3) of the Act. 15.. Before we part with the case, we would like to indicate that assessment of tax should be completed with expedition. It involves revenue to the State. In the case of a registered dealer who collects sales tax on behalf of the State, there is no justification for him to withhold the payment of the tax so collected. If a timely assessment is completed, the dues of the State can be conveniently ascertained and collected. Delay in completion of assessment often creates problems. The assessee would be required to keep up all the evidence in support of his transactions. Where evidence is necessary, with the lapse of time, there is scope for its being lost. Oral evidence as and when required to be produced by the assessing authority may not be available if a long period intervenes between the transactions and the considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt factors. 18.. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in sub-section (6) of section 11 of the Act is five years." In the case of Commissioner of Sales Tax, Orissa v. Halari Store [1997] 107 STC 579 (SC); [1997] 7 SCC 715, the Supreme Court while considering the suo motu power of revision of Commissioner of Sales Tax under the Orissa Sales Tax Act, observed as under (at para 10 of 107 STC): "10. So far as the second reasoning given by the High Court that the proviso to clause (a) 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 come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 lead 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 by meticulous analysis with legal tools and some time-limit must exist. In absence of statutory-time period for the exercise of the power, article 137 of the Limitation Act, 1963 will come into play and such suo motu revisional power be exercised within three years from the date of the order sought to be revised. The interpretation that a period of 90 days is prescribed to exercise power of revision if an application is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality and irregularity in treating the transaction as consignment sale instead of inter-State sale which is against the interest of Revenue and, therefore, a case for revision under section 46(4) of the Act is made out. The Joint Commissioner of Commercial Taxes entertained the application and directed the office to issue the impugned notice to the petitioner. A copy of the said notice has been annexed as annexure 7 to the writ petition. The Joint Commissioner of Commercial Taxes thereafter finally passed order under section 46(4) of the Act which is also impugned in these writ petitions. The aforementioned fact with regard to initiating of proceeding by the Joint Commissioner of Commercial Taxes on the basis of application made by the Deputy Commissioner of Commercial Taxes has not been denied or disputed by the respondents. It would not be out of place to mention here that a number of writ petitions have been filed by the dealers challenging the notices issued by the Joint Commissioner of Commercial Taxes exercising suo motu revision under section 46(4) of the Act, 2/3 years after, the assessment orders are sought to be revised and that too, when their applications for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
