1996 (2) TMI 479 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Validity of the notices issued under Section 23(4)(a) of the Orissa Sales Tax Act, 1947.
2. Competence of the Additional Commissioner of Sales Tax to invoke suo motu revision.
3. Interpretation of Section 23(4)(a) and Rule 80 of the Orissa Sales Tax Rules, 1947.
4. Jurisdiction of the Commissioner in revising appellate orders.

Issue-wise Detailed Analysis:

1. Validity of the notices issued under Section 23(4)(a) of the Orissa Sales Tax Act, 1947:

The writ petitions challenged the notices dated June 9, 1995, issued by the Additional Commissioner of Sales Tax under Section 23(4)(a) of the Orissa Sales Tax Act, 1947, read with Rule 80 of the Orissa Sales Tax Rules, 1947. The notices aimed to revise the first appellate orders passed by the Assistant Commissioner of Sales Tax for the assessment years 1992-93 and 1993-94. The petitioner argued that the Revenue did not challenge the first appellate orders through second appeals within the stipulated time and instead issued the impugned notices to nullify the final orders.

2. Competence of the Additional Commissioner of Sales Tax to invoke suo motu revision:

The petitioner contended that the Additional Commissioner of Sales Tax was not competent to invoke suo motu jurisdiction under Section 23(4) of the Act by issuing the impugned notices. The argument was based on the premise that the Assistant Commissioner of Sales Tax, being the competent authority to decide the first appeals, had already disposed of the appeals. The Revenue should have filed second appeals as provided in Section 23(3) of the Act instead of resorting to suo motu revision.

3. Interpretation of Section 23(4)(a) and Rule 80 of the Orissa Sales Tax Rules, 1947:

The court examined Section 23 of the Act and the Rules framed thereunder. Section 23 deals with appeals and revisions, with sub-section (4)(a) empowering the Commissioner to revise any order made under the Act or the Rules by any person other than the Tribunal. Rule 80 allows the Commissioner to call for records and revise orders if they are erroneous and prejudicial to the interest of the Revenue. However, the court emphasized that rules made under an Act cannot override the specific provisions of the Act. Therefore, Rule 80 cannot confer any extra power of revision to the Commissioner beyond what is provided in Section 23(4)(a).

4. Jurisdiction of the Commissioner in revising appellate orders:

The court held that the expression "any order" in Section 23(4)(a) and Rule 80 does not include appellate orders made under Section 23(2). The statute provides a clear and specific provision for filing second appeals to the Tribunal against the orders of the first appellate authority. The aggrieved party cannot bypass the appellate forum and invoke the revisional jurisdiction of the Commissioner. The restrictions in the proviso to Section 23(4)(a) and Rule 80 further support this interpretation, indicating that the Commissioner cannot revise an order where an appeal is pending or where the time-limit for filing an appeal has not expired.

Conclusion:

The court concluded that the Additional Commissioner of Sales Tax was not within his bounds to issue the impugned notices under Section 23(4)(a) read with Rule 80. The first appellate authority's orders had become final as the Revenue did not prefer any appeal. Consequently, the impugned notices were without jurisdiction and were quashed. Both writ petitions were allowed, and there was no order as to costs.