1976 (11) TMI 187 - HC - VAT and Sales Tax

Issues Involved:
1. Validity of the order made under section 57 of the Bombay Sales Tax Act, 1959.
2. Scope and power conferred by section 57 of the Act in tax revision matters.
3. Distinction between assessment and reassessment under sections 35 and 57 of the Act.
4. Jurisdictional limitations on the exercise of revisional power.
5. Procedural correctness in the issuance of notices and the proposed orders.

Detailed Analysis:

1. Validity of the Order Made Under Section 57 of the Bombay Sales Tax Act, 1959:
The petitioner, a dealer in foreign liquor, challenged the validity of the order dated 6th January 1970, made under section 57 by the Assistant Commissioner of Sales Tax. The original assessment order dated 28th November 1967 by the Sales Tax Officer was revised, and the petitioner was assessed to Rs. 76,599.05 as tax payable with additional penalties. The main contention was that the revisional order was made without jurisdiction or in excess thereof, arguing that the proper provision for reassessment was section 35, not section 57.

2. Scope and Power Conferred by Section 57 of the Act in Tax Revision Matters:
The court explained that section 57 provides the Commissioner with the power to call for and examine the record of any order passed by a subordinate officer and make an order deemed just and proper. This power includes correcting errors of law or procedure apparent on the record. It was emphasized that this supervisory power is distinct from the original assessment and reassessment powers and is meant for ensuring legality, propriety, and correctness of the assessment.

3. Distinction Between Assessment and Reassessment Under Sections 35 and 57 of the Act:
The court elucidated the difference between assessment (section 33) and reassessment (section 35). Assessment involves determining the tax liability based on the turnover, while reassessment is reopening the assessment due to reasons such as escaped turnover or wrong deductions. Section 57 deals with the revision of the assessment order, not reassessment. The court noted that the revisional power under section 57 is not curtailed by the reassessment power under section 35, as they operate in distinct fields.

4. Jurisdictional Limitations on the Exercise of Revisional Power:
The court referenced the Supreme Court's decisions in Swastik Oil Mills Ltd. v. H.B. Munshi and State of Kerala v. K.M. Cheria Abdulla & Co., which clarified that the revisional authority should not encroach upon powers reserved for other authorities, such as reassessment. However, the revisional power can correct errors in the assessment process. The court held that the revisional power under section 57 was appropriately exercised to correct the errors in the application of law, which were not in dispute.

5. Procedural Correctness in the Issuance of Notices and the Proposed Orders:
The petitioner argued that the particulars regarding set-off and deductions were not indicated in the proposed orders, making the orders procedurally defective. The court found no merit in this argument, stating that no new material was used against the petitioner and that the law was applied to existing facts and figures. The court concluded that the procedural requirements were met, and the order was valid.

Conclusion:
The court dismissed the petitions, upholding the revisional order made under section 57. It was determined that the power under section 57 was correctly invoked to correct apparent errors in the assessment, and there were no procedural defects affecting the validity of the order. The court refused the leave to appeal under article 133 of the Constitution of India, as the decision was based on the ratio of the Supreme Court's judgments.

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