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TMI Blog2023 (11) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... Bilaspur in Appeal Cases No. 03/K.C./02/2017/Prantiya,09/K.C/02/2017/Prantiya and 32/K.C./02/2017/Prantiya, passed on 03.08.2017, 08.08.2017 and 09.08.2017, respectively. 3) Brief facts of the case, are that the petitioner is a registered company under the Indian Companies Act, 1956 engaged in the business of Manufacturing, Civil and Mechanical Engineer and Contractors, Imports in Dealer Textile Machinery, Engineering and Electronic Goods and Instruments in various states of the country. 4) The petitioner was awarded a contract by GACL Bhatapara Railway siding, Rawan, Godawari Power and Ispat Raipur, J. K. Laxmi Durg, JSPL Plate Mill work, Raipur, PIL Civil and Strl, sponge iron work, Champa, SEPCl Phase-II, CPP Projects Korba, Top Worth Infra Rasmada, Vandana Vidyut Limited, Chhuri, Ambuja Realty Cement, Raigarh, JSPL Power Plant. The gross receipt of Rs. 1,87,58,04,199/- was shown. The assessment order was passed on 23.05.2016 by the Assessment authority i.e. Assistant Commissioner, Commercial Tax, Korba and the assessee was directed to pay Rs. 37,98,787/-. Against the said order, an appeal was preferred by the petitioner on specific grounds. The Appellate Authority/Deputy Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83 of 1962 decided on 19.01.1963, wherein the old Act has been dealt with, which is pari-materia to CGVAT Act. 6) On the other hand, Mr. Kumrani, learned counsel appearing for the State would submit that Section 3 of the Act, 2005 deals with Taxing authority and other officers to assist the Commissioner of the VAT Tax. He would further submit that the Additional Commissioner, Appellate Deputy Commissioner or Additional Appellate Deputy Commissioner, Deputy Commissioner or Additional Deputy Commissioner, Assistant Commissioner or Additional Assistant Commissioner of Commercial Tax, have been appointed to assist the Commissioner and the same is very much clear from the language of Section 3 the Act, 2005. He would also submit that from a bare reading of Section 49(3) of the Act, 2005, it is quite vivid that any officer appointed under Section 3 of the Act to assist the Commissioner includes the appellate revisional commissioner and 'assist' does not mean an officer who has been appointed or entrusted with the power to assist the commissioner in a particular case, therefore, the Commissioner/respondent No. 2 has rightly exercised the revisional power. He would further contend that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee calendar years from the date of the order sought to be revised; (b) no order shall be revised by the commissioner under this sub-section where a second appeal against such order is pending before the [Tribunal] or such appeal has been decided by the [Tribunal] on merits." 11) Section 3(1) of the Act, 2005 reads as under:- "Section 3: Taxing Authorities and other Officers (1) There may be appointed a person to be the commissioner of [Commercial Tax] and the following category of officers to assist him, namely : (a) Additional Commissioner of [Commercial Tax]; (b) Appellate Deputy Commissioner or Additional Appellate Deputy Commissioner of [Commercial Tax]; (c) Deputy Commissioner or Additional Deputy Commissioner of [Commercial Tax]; (d) Assistant Commissioner or Additional Assistant Commissioner of [Commercial Tax]; (e) [Commercial Tax] Officer or Additional [Commercial Tax] Officer; (f) Assistant [Commercial Tax] Officer; and (g) Inspector of [Commercial Tax]." 12) Section 48 (2) of the Act, 2005 reads as under:- "2) Any dealer or person aggrieved by an order passed in appeal filed under subsection (1) may, in the prescribed manner, appeal aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Mr. Paranjpe. In the matter of Goldie Glass Industries (supra), the High Court of Madhya Pradesh while dealing with the pari-materia provision of the VAT Act held in para 2, 5 and 6 as under:- "2. This question falls for our consideration on the following facts. Petitioner, a proprietary concern, is a registered dealer and engaged in the manufacture of High Glass Putty; Frosted Designs on Glass and Plastic Aluminium Composite, Laminated Panel Sheets. For the assessment year 2008-2009, it was assessed to VAT @ 4% as per Entry 36A of Part-II of Schedule-II on Aluminium Composite Panel. The said assessment was reopened under Section 21(1) of the VAT Act on the ground of short levy of Tax on Aluminium Composite Panel, which was liable to be taxed under residuary entry @ 12.5%. Accordingly, reassessment was framed raising an additional demand of Rs. 5,81,234/- on account of difference in the rate of tax. The matter was carried in appeal to Dy. Commissioner (Appeal) who deleted the levy of additional tax vide order dated 14.9.2011. 5. Bare perusal of provisions quoted above would reveal that Section 3 deals with appointment of the Commissioner and officers to assist him as taxing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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 Commissioner decides to exercise his suo motu revisional power to revise an appellate order. Significantly, the words "on his own motion" occurring in the enactment are conspicuously absent in the proviso. Normally, a proviso is enacted o carve out something special out of the general enactment or to qualify what is in the enactment. By enacting the proviso the legislature has excluded the revisional jurisdiction of the Commissioner Sales Tax to revise an appellate order if invoked at the instance of a dealer or person when such dealer or person has a remedy by way of an appeal. As noticed earlier, the limitation on the suo motu power of the Commissioner as to revise an appellate order has not been expressly provided in the proviso. In absence of any expressed provisions, no limitation on suo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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