TMI Blog2015 (4) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... for fresh consideration of the subject issue by the concerned. Validity of second revision of same assessment order - Assessment order duly passed by the CTO and Deputy Commissioner took suo motu revision on two issues - Deputy Commissioner did not advert to the issue concerning section 6A, hence the Commissioner having found that revisional order insofar asnon-adjudication of issue concerning section 6A is prejudicial to the interests of the revenue of the State had taken up the suo motu revision on this particular issue which was not considered and adjudicated by the Deputy Commissioner and had sought to revise the orders of the Deputy Commissioner on the said issue and had passed the revisional orders - Held that:- the law is well-settled that a second revision of the same order by the same authority on the same facts and issues is impermissible. But here the Commissioner had sought to revise and had infact revised the orders of the Deputy Commissioner and therefore, the contention that the Commissioner had revised the orders of the CTO a second time is a contention without any merit and therefore, stands rejected. Period of limitation - Sub-section (3) of section 20 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished product as per the terms of the G. O. Ms. No. 763 Revenue (CT-II) Department, dated August 21, 1990. The Deputy Commissioner, who had examined the assessment record of the CTO was of the view that the assessing authority had acted in a manner prejudicial to the interests of the Revenue of the State and had, therefore, proposed to restrict the set-off of tax by withdrawing the excess set-off of ₹ 4,73,946. Accordingly, a show-cause notice was issued by the Deputy Commissioner; and, finally the Deputy Commissioner by his order dated March 7, 1996 had allowed a set-off of ₹ 58,92,050 as against the set-off of ₹ 61,39,374 granted by the CTO. The Commissioner having examined the said revision order of the Deputy Commissioner with reference to the records had found that the order of the Deputy Commissioner is incorrect and is prejudicial to the interests of the Revenue of the State and had, therefore, issued a show-cause notice proposing to revise the order of the Deputy Commissioner. However, when it was brought to the notice of the Commissioner that the order of the Deputy Commissioner was assailed in appeal in T.A. No. 794 of 1997 before the Sales Tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the Commissioner is not justified in levying tax under section 6A of the Act. In any view of the matter, the levy of tax under section 6A of the Act is not justified and correct as the appellant has purchased the goods from registered dealers within the State. In the present case, the order of the CTO is dated March 24, 1994 and the order of the Deputy Commissioner in the first revision is dated March 7, 1996 and that admittedly the respondent had issued the show-cause notice proposing revision under sub-section (1) of section 20 on May 3, 1999, i.e., after about five years from the date of order of assessment and that therefore, the initiation of proposal for revision by the respondent and the impugned order passed by the respondent are clearly barred by law of limitation prescribed in sub-section (3) of section 20 of the Act. On the other hand, the learned Special Government Pleader would contend as follows:- The Commissioner had revised the orders of the Deputy Commissioner and not the orders of the CTO. In view of the fact that the appellant had preferred an appeal before the STAT assailing the restriction of the set-off by the Deputy Commissioner in the revisional o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Commissioner on February 29, 2000 revising the revisional order passed by the Deputy Commissioner on March 7, 1996. 8.2 The first aspect to be considered is-whether the respondent had merely revised the orders of the Deputy Commissioner or in-fact he had revised the orders of the CTO under the guise of revising the orders of the Deputy Commissioner ? The contention of the learned counsel for the appellant is that the order of the Deputy Commissioner insofar as the proposal to levy tax under section 6A is silent and that, therefore, there was no adjudication on this issue by the Deputy Commissioner and that therefore, the proposal to revise the order of the Deputy Commissioner on an issue which was not adjudicated is impermissible and that such an exercise of revision power by the Commissioner would amount to revising the order of the CTO dated March 24, 1994 and that therefore, the exercise of revision power by the Commissioner beyond the prescribed period of limitation of four years is bad in law. The learned Special Government Pleader would contend that the Deputy Commissioner having taken up the issue in his proposed revision did not advert to the said issue and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 20(1) of the Act. The powers of revision, in our well considered view, can be invoked in respect of a subject-matter which is not adjudicated by the Deputy Commissioner. Therefore, it cannot be said that the Commissioner had in fact revised the orders of the CTO under the guise of revising the orders of the Deputy Commissioner. Therefore, it follows that the Commissioner had only revised the orders of the Deputy Commissioner. 8.4 The next contention which falls for consideration is that the revision entertained by the Commissioner is a second revision of the same assessment order and that, therefore, the same is bad in law. The substance of the contention is that since the Deputy Commissioner did not adjudicate the present issue and as the order of the Deputy Commissioner is silent on this issue it shall be deemed that the Commissioner was in essence revising the orders of the CTO under the guise of revising the orders of the Deputy Commissioner and that therefore, the order impugned of the Commissioner is liable to be set aside. A perusal of the material record would show that an assessment order was duly passed by the CTO. The Deputy Commissioner had taken up suo motu revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs from the date of order of assessment and that therefore, the initiation of proposal for revision by the respondent and the impugned order passed by the respondent are clearly barred by law of limitation prescribed in sub-section (3) of section 20 of the Act. Section 20(3) of the Act reads as under: 'In relation to an order of assessment passed under this Act, the powers conferred by sub-sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed'. 8.6 Keeping in view the facts of the instant case and also the provision of law, it is necessary to refer to the ratios in the precedents cited before us. (i) In State of Andhra Pradesh v. Toshiba Anand Batteries Ltd. [1995] 96 STC 664 (AP), the effect of sub-section (3) of section 20 of the APGST Act was considered. The facts and ratio of the cited case are as follows: After the assessment order was passed by the CTO, the revising authority issued a notice dated September 25, 1981 to the assessee proposing to initiate revisional proceedings on the ground that dry batteries fell under entry 137 and deserved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts v. Commissioner of Commercial Taxes, A. P., Hyderabad [1999] 115 STC 286 (AP), a batch of appeals were preferred by the assessee assailing the orders dated July 31, 1998 passed by the Commissioner in exercise of power of revision vested in him under section 20(1) of the APGST Act. The facts of the case are as follows:- The Commissioner by his orders dated July 31, 1998 had set aside the orders of the Appellate Deputy Commissioner (D.T.) and had restored the orders of the assessing authority. The Commissioner had thus passed the order of revision on July 31, 1998, which admittedly went beyond the period of four years from the date of service of appellate order. To get over the said difficulty the learned Government Pleader argued that the period of four years is the outer-limit prescribed to initiate the legal proceedings and it is not necessary that the final order of revision shall be passed before the expiry of four years from the date of service of the order or proceeding to be revised. This court noted that the very same contention advanced on behalf of the State was negatived by a Division Bench of this court in Toshiba Anand Batteries Ltd. case [1995] 96 STC 664 (AP) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant under the CST Act for the year 2000-01 and passed orders dated March 15, 2003. The Additional Commissioner (CT) vide notice dated October 28, 2006 had proposed to revise the order dated March 15, 2003 of the Deputy Commissioner (CT) Abids Division in exercise of powers under section 20(3) of the Act read with section 9(2) of the CST Act. The said Additional Commissioner passed orders dated February 28, 2007. The Commissioner/respondent had passed final revision orders on July 13, 2010. A question whether the respondent is merely revising the order dated February 28, 2007 passed by the Additional Commissioner (CT) Legal or he is in fact revising the order dated March 15, 2003 of the Deputy Commissioner (C. T.), Abids fell for consideration. Having regard to the facts of the case, this court held as follows: - In our view, it would have been a valid exercise of revisional power by the respondent if he had undertaken to revise the order dated February 28, 2007 of the Additional Commissioner (CT) Legal on the ground that (a) the two decisions relied upon by the latter were wrong in law or (b) that he did not agree with the said decisions, or (c) that the said decisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any authority, officer or person subordinate to him, under the provisions of the APGST Act, including sub-section (2) of section 20, the Commissioner may initiate proceedings and pass revisional orders within the prescribed period of limitation of four years from the date of service of the order of the subordinate, under revision, on the dealer. 8.8 This being the legal position, in the case on hand, the facts show that the Commissioner had initiated the revision proceedings by a show cause notice dated May 3, 1999 proposing to revise the order dated March 7, 1996 of the Deputy Commissioner (CT) Panjagutta Division. Further, the Commissioner had passed revisional orders admittedly on February 29, 2000, i.e., within the period of four years from the date of the orders of the Deputy Commissioner (CT), i.e., March 7, 1996. In view of the said facts and our finding supra that the Commissioner had revised the orders dated March 7, 1996 of the Deputy Commissioner and not the order dated March 24, 1994 of the CTO and in the light of the further fact that the impugned orders were passed within four years from the date of the orders of the Deputy Commissioner, the contention of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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