1997 (9) TMI 516 - SC - VAT and Sales Tax

Whether the Commissioner of Sales Tax suo motu can revise under clause (a) of sub-section (4) of section 23 of the Orissa Sales Tax Act read with rule 80 of the Orissa Sales Tax Rules an appellate order passed by the Assistant Commissioner of Sales Tax? Held that - Appeal allowed. In the absence of any expressed provisions no limitation on suo motu power of the Commissioner to revise an appellate order can be implied. Accordingly hold that the provisions of proviso to sub-section (4)(a) of section 23 of the Act do not prohibit the Commissioner to exercise suo motu revisional power to revise an appellate order. The High Court fell in error in quashing the impugned notices and allowing the writ petition of the respondent herein.

Issues Involved:
1. Jurisdiction of the Commissioner of Sales Tax to revise appellate orders under Section 23(4)(a) of the Orissa Sales Tax Act.
2. Interpretation of the expression "order made under this Act" in Section 23(4)(a).
3. Limitation on the Commissioner's suo motu revisional powers under the proviso to Section 23(4)(a).

Detailed Analysis:

1. Jurisdiction of the Commissioner of Sales Tax to Revise Appellate Orders:

The primary issue in these appeals was whether the Commissioner of Sales Tax has the jurisdiction to revise appellate orders passed by the Assistant Commissioner of Sales Tax under Section 23(4)(a) of the Orissa Sales Tax Act, read with Rule 80 of the Orissa Sales Tax Rules. The respondent-dealer, a registered dealer under the Act, challenged the notices issued by the Additional Commissioner of Sales Tax for revising the appellate orders on the grounds of lack of jurisdiction. The High Court quashed these notices, holding that the Commissioner did not have the jurisdiction to revise appellate orders.

2. Interpretation of the Expression "Order Made Under This Act":

The High Court's judgment was based on two grounds: first, that the appellate order does not fall within the meaning of the expression "order made under this Act" in Section 23(4)(a); and second, that the proviso to Section 23(4)(a) limits the Commissioner's power to revise appellate orders. The Supreme Court referred to its earlier decision in State of Orissa v. Krishna Stores, which interpreted Section 23(4)(a) and the unamended Rule 80. The Court held that the expression "any order made under this Act" in Section 23(4)(a) is broad and includes appellate orders. The amended Rule 80, which removed the words "other than an appellate order," further supports the view that the Commissioner has the power to revise appellate orders.

3. Limitation on the Commissioner's Suo Motu Revisional Powers:

The High Court also held that the proviso to Section 23(4)(a) limits the Commissioner's power to revise appellate orders. However, the Supreme Court clarified that the proviso restricts the Commissioner from entertaining revision applications from dealers who have not exhausted their appellate remedies. This limitation does not apply to the Commissioner's suo motu powers. The Court emphasized that the proviso does not expressly limit the Commissioner's suo motu revisional powers, and such a limitation cannot be implied.

Conclusion:

The Supreme Court concluded that the High Court erred in quashing the impugned notices and allowing the writ petitions. The Commissioner of Sales Tax has the jurisdiction to revise appellate orders under Section 23(4)(a) of the Orissa Sales Tax Act, read with the amended Rule 80. The expression "any order made under this Act" includes appellate orders, and the proviso to Section 23(4)(a) does not limit the Commissioner's suo motu revisional powers. Consequently, the Supreme Court set aside the High Court's judgment and allowed the appeals, with no order as to costs.

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