2011 (12) TMI 473 - HC - VAT and Sales Tax

Order of assessment challenged - whether the Additional Excise and Taxation Commissioner is not a Commissioner, competent to invoke revisional jurisdiction in terms of section 65 of the Act ? Held that - In view of the notification dated March 31, 2005, an Additional Excise and Taxation Commissioner, is the Commissioner under the Act and competent to invoke the revisional jurisdiction under the Act. The source of information is not important but the satisfaction of the authority in respect of legality and propriety of the proceedings. If the Commissioner is prima facie satisfied that there is illegality or impropriety, he has been empowered to issue show cause notice. After considering the reply, the Commissioner on being satisfied that the order of the assessing officer is suffering from any illegality or impropriety, will have jurisdiction to interfere in the order otherwise, the revisional jurisdiction cannot be exercised. The last argument that reasons for issuing show-cause notice are not made out so as to point out any impropriety or illegality, is an argument raised without submitting reply to consider the merits of the issues raised. Such an argument cannot be examined at this stage. W.P. dismissed.

Summary

Issues:
Challenge to notice dated November 18, 2011, by Additional Excise and Taxation Commissioner for appearance with documents. Jurisdiction of the Additional Excise and Taxation Commissioner under section 65 of the Act. Legality and propriety of the show-cause notices issued. Authority of the Additional Excise and Taxation Commissioner to exercise revisional jurisdiction.

Analysis:
The petition challenges a notice issued by the Additional Excise and Taxation Commissioner, calling for the appearance of the petitioner with documents related to assessment finalization for the years 2005-06 and 2006-07. The petitioner contests the show-cause notices on various grounds. Firstly, it is argued that the Additional Excise and Taxation Commissioner lacks the authority to invoke revisional jurisdiction under section 65 of the Act. Secondly, it is contended that the Commissioner acted based on the Assistant Commissioner's influence, rather than independently assessing the need for revision. Lastly, the petitioner disputes the basis for the show-cause notices, claiming that the alleged illegality in the assessment order is not substantiated.

The court examines the definition of "Commissioner" under the Act, which includes officers designated by the State Government. A notification designates the Additional Excise and Taxation Commissioner to exercise powers under section 65 of the Act, allowing for the calling of records to assess legality and propriety of proceedings. Thus, the Additional Excise and Taxation Commissioner is deemed competent to act as the revisional authority in this case.

Addressing the argument of multiple Commissioners potentially leading to jurisdictional issues, the court clarifies that the designation of the Additional Excise and Taxation Commissioner as the Commissioner stands, irrespective of the number of such officers. The focus is on the authority's competence to exercise revisional jurisdiction, which is established by the notification.

Regarding the requirement for the Commissioner to act at his own motion, the court explains that information from various sources, including subordinate authorities or parties, can trigger the revisional process. The critical factor is the Commissioner's satisfaction regarding the legality and propriety of the proceedings, which may lead to the issuance of show-cause notices for further examination.

The court dismisses the argument that the reasons for the show-cause notices are insufficient, emphasizing that the revisional authority must evaluate the contentions raised by the petitioner to determine the presence of any illegality or impropriety justifying intervention. Consequently, the court rejects the petition, emphasizing that such arguments should be raised and assessed during the revisional process rather than at the initial stage of challenging the show-cause notices.