1992 (8) TMI 273 - AT - VAT and Sales Tax

Summary

Issues Involved:
1. Jurisdiction of the Additional Commissioner of Commercial Taxes for revising the order of the Assistant Commissioner.
2. Applicability of the doctrine of merger to the orders in question.
3. Limitation period for initiating revisional proceedings.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Additional Commissioner of Commercial Taxes:
The respondent No. 1 argued that the Additional Commissioner of Commercial Taxes had no authority or jurisdiction to revise the order of the Assistant Commissioner of Commercial Taxes. The Tribunal examined the validity of the respondent's claim and the legal grounds for the Additional Commissioner's actions. The Tribunal found that the Additional Commissioner acted within his jurisdiction, but the revision was challenged on the grounds of limitation and the doctrine of merger.

2. Applicability of the Doctrine of Merger:
The Tribunal analyzed the doctrine of merger, citing several Supreme Court cases, including *Commissioner of Income-tax v. Amritlal Bhogilal & Co.* and *State of Madras v. Madurai Mills Co. Ltd.* The doctrine of merger states that an order of an inferior court merges into the order of a superior court when the latter passes a judgment on the same subject matter. However, the Tribunal noted that the doctrine is not of rigid and universal application and depends on the nature of the appellate or revisional order and the scope of the statutory provisions.

In the present case, the Tribunal concluded that the order of assessment and the appellate order did not merge with the suo motu revisional order of the Additional Commissioner because the subject matter of the suo motu revision (suppression of gross turnover and taxable turnover) was not considered by the appellate authority. Therefore, the revision case pending before the Tribunal had not become infructuous.

3. Limitation Period for Initiating Revisional Proceedings:
The Tribunal discussed the limitation period for initiating revisional proceedings under rule 80(5)(ii) of the Bengal Sales Tax Rules, 1941. The rule, as amended by Notification No. 1123-F.T. dated March 30, 1974, extended the period of limitation to six years from the date of any assessment made or order passed under the Act or the Rules. The Tribunal held that the period of limitation should be calculated from the date of the order of assessment (August 17, 1972) and not from the date of the appellate order (February 5, 1974). Consequently, the initiation of the revisional proceeding by the Additional Commissioner on February 8, 1979, was barred by limitation.

Conclusion:
The Tribunal dismissed the application, holding that the initiation of the revisional proceeding by the Additional Commissioner was barred by limitation. The Tribunal also noted that the respondent No. 2's dismissal of Revision Case No. 274 of 1979-80 was a mistake, as it should have been allowed based on the finding that the suo motu revision was barred by limitation. The application was dismissed without any order as to cost, and a stay of operation of the judgment and order was granted for eight weeks.

Separate Judgments:
- L.N. Ray (Judicial Member) and P.C. Banerji (Technical Member) concurred with the judgment.
- Application dismissed.