1978 (7) TMI 233 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the Commissioner of Sales Tax can exercise his power of revision under section 57(1)(a) of the Bombay Sales Tax Act, 1959, in respect of an order passed by the Assistant Commissioner when a second appeal by the assessee is pending before the Maharashtra Sales Tax Tribunal.

Issue-wise Detailed Analysis:

1. Commissioner's Power of Revision During Pending Appeal:
The primary issue addressed is whether the Commissioner of Sales Tax has the authority to revise an order passed by the Assistant Commissioner while a second appeal is pending before the Tribunal. The court examined the relevant statutory provisions under sections 55 and 57 of the Bombay Sales Tax Act, 1959.

Statutory Provisions:
- Section 55 outlines the appellate mechanism, providing for first and second appeals against orders passed by various sales tax authorities.
- Section 57 confers revisional powers on the Commissioner and the Tribunal, allowing them to revise orders passed by subordinate officers.

Arguments and Interpretation:
- The petitioner argued that the exercise of revisional power during the pendency of an appeal would nullify the appeal's effect, rendering the appellate process futile.
- It was contended that the right of appeal is a vested right and cannot be taken away without express legislative provision.
- The petitioner relied on the principle of harmonious construction, suggesting that sections 55 and 57 should be interpreted to avoid conflict and preserve the right of appeal.

Court's Analysis:
- The court referred to the Division Bench's decision in Commissioner of Sales Tax v. Motor & Machinery Manufacturers Ltd. [1976] 38 S.T.C. 78, which held that the Commissioner could exercise revisional powers even during the pendency of an appeal.
- The court emphasized that the legislature did not explicitly restrict the Commissioner's revisional power during the pendency of an appeal in section 57.
- It was noted that the revisional power is intended to correct any prejudicial order to the revenue and should not be curtailed unless explicitly stated by the legislature.

Finality and Effectiveness of Orders:
- The court observed that an order remains effective and subsisting until it is set aside or nullified by the appellate authority.
- The mere pendency of an appeal does not suspend the operation of the order under appeal.

Alternative Remedies:
- The petitioner argued that the revenue could achieve the same result through the appellate process, as the appellate authority has the power to enhance assessments.
- The court rejected this argument, stating that the availability of an alternative remedy does not preclude the exercise of revisional powers unless explicitly restricted by the statute.

Conclusion:
- The court concluded that the Commissioner's revisional power under section 57(1)(a) is not restricted by the pendency of an appeal before the Tribunal.
- The court dismissed the petition, upholding the Commissioner's authority to revise the order of the Assistant Commissioner even during the pendency of a second appeal.

Additional Observations:
- The court addressed objections regarding the maintainability of the petition under articles 226 and 227 of the Constitution, finding them without merit.
- The court also rejected the petitioner's request for a certificate of fitness for appeal to the Supreme Court, stating that the decision was based on established principles of law.

Order:
- The petition was dismissed, and the rule was discharged.
- The stay on the execution of the Deputy Commissioner's order was extended for six weeks to allow the petitioner to seek appropriate relief from the Supreme Court.