TMI Blog2010 (6) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 3) and the orders dated December 24, 2009 and September 18, 2008 passed by the Commissioner of Taxes, Assam. Vide impugned order dated March 31, 2000 the Superintendent of Taxes passed various orders of assessment assessing the petitioner under section 17(5) of the Assam General Sales Tax Act, 1993 read with section 9(2) of the Central Sales Tax Act, 1956, and vide impugned order dated March 27, 2004, the appeals filed by the petitioner challenging the assessment orders passed by the Superintendent of Taxes were rejected by the appellate authority. Vide impugned order dated December 24, 2009, the revision petitions filed by the petitioner challenging the appellate orders filed under section 36(2) of the AGST Act were rejected. Heard Dr. A. K Saraf, learned senior counsel assisted by Ms. N. Hawelia and Ms. L. Gope, advocates appearing for the petitioners. Also heard Mr. D. Saikia, learned standing counsel appearing for the respondents. All these cases having involved similar questions of fact and law in respect of different assessment orders passed by the assessing authority and appellate and revisional orders passed by the respective authorities, and as prayed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured and stock was transferred by the petitioner outside the State and sold in course of export and in course of inter-State sale to the registered dealers but the documents in support of such stock transfer could not be produced at the time of assessment proceeding. Thereafter the petitioner preferred a statutory appeal before the Deputy Commissioner of Taxes (Appeal) under section 33 of the AGST Act, 1993, challenging the order of the assessment passed for the years 1994-95, 1995-96 and 1996-97. There was delay of 431, 347 and 321 days, respectively, in filing the appeals and accordingly three separate applications were filed praying for condoning the delay, along with the appeals. The hearing of the condonation petition was fixed on July 20, 2001 but it was adjourned till August 23, 2001 on the prayer of the petitioner, on which date also on the prayer for adjournment made by the petitioner time was extended. Though further time was granted to the petitioner, they did not turn up and accordingly a fresh notice dated January 12, 2002 was issued by the appellate authority to the petitioner to show cause as to why the appeals should not be rejected for their non-appearance a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to their negligence they did not pursue the appeals, (b) secondly, section 36(2) of the AGST Act having prescribed the period of limitation of 90 days from the end of the financial year in which the order sought to be revised and the petitioner having filed such revision petitions much beyond such statutory period, the revision petitions were not filed within the said period of limitation as fixed by statute. Dr. Saraf, learned senior counsel, referring to the financial constraint and mis-management of the garden including, introduction of a third party to manage the garden, submits that the grounds for delay in filing the appeals and the revision petitions have been sufficiently explained justifying condonation of delay as prayed for. Dr. Saraf further argued that the petitioner has got a very strong case on merit and, and in the event delay is not condoned and the matter is not disposed of on merit, grave injustice would be caused to the petitioner. Mr. D. Saikia, learned counsel for the respondents however, referring to the various eventful dates as reflected from the statement of the petitioner as well as the condonation petition and other documents submits that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control over the garden, and they were not in physical possession of the garden and the judicial orders and other materials available on record do not support such a stand. Materials on record disclose that the petitioner was in physical possession of the garden all through out. Section 36 of the AGST Act, 1993, authorises the Commissioner for revision of an order passed by the lower authority in the hierarchy. Subsection (1) of section 36 confers suo motu revisional power upon the Commissioner to the effect, that when on examination of the records of any proceeding under this Act, the Commissioner considers that any order passed therein by any officer is erroneous in so far it is pre-judicial to the interest of the Revenue, he may revise the order. Proviso to section 36(1) mandates that no such suo motu revisional power is to be exercised after expiry of eight years from the end of the financial year in which the order sought to be revised was passed. Sub-section (2) of section 36 provides that the Commissioner may on his own motion or in an application made by the dealer or any aggrieved person revise an order passed by a person appointed by the Commissioner under sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in sections 4 to 24 would apply provided they are not excluded by the special or local law. Section 36 of the AGST Act specifically provides that the Commissioner shall not revise any order under sub-section (2) of section 36 after expiry of ninety days from end of the financial year to which the order was made providing further that if an application for revision so filed before expiry of ninety days in that event the revision could be disposed of at any time. Although there is no application of specific language such as express exclusion the mandate of the law is that the Commissioner shall not revise any such order after expiry of ninety days. The aforesaid provisions contained in sub-section (2) of section 36 would amount to express exclusion within the meaning of section 29(2) of the Limitation Act and consequently the provision of section 5 of the Limitation Act would be excluded. An other interpretation of proviso to sub-section (2) of section 36 making section 5 of the Limitation Act applicable would make the legislative mandate, as indicated above, otiose. The apex court in the case of Union of India v. Popular Construction Co. [2001] 8 SCC 470 had the occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) reported in AIR 1974 SC 1868. That apart, when a power has to be exercised by a certain authority in a certain case, it should be exercised in that manner only or not at all and other modes of performances are naturally evident. (Ref: Hukam Chand Shyam Lal v. Union of India reported in AIR 1976 SC 789). It is also not the function of the court to direct an authority to do something in derogation of or in contravention of the provisions of law and by issuing a writ or similar direction, the court is not to direct the authority to disobey the provisions of the statute and that would be destructive of the rule of law. In fact in the case of A.P. Christian Medical Educational Society v. Govt. of Andhra Pradesh Justice Chinaappa Reddy reported in [1986] 2 SCC 667 speaking for the court held that the court cannot issue direction to the university to protect the interest of the students who had been admitted to the medical college as that would be a clear transgression of the provisions of the University Act and the Regulations of the University. The court cannot direct the university to disobey the statute to which it owes its existence and the regulation made by the university itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
