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TMI Blog1973 (7) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... t of each year, were passed which are annexures A and A1 to the statement of case. 2.. The assessee filed two appeals which were heard by Sri E. Hussain, Deputy Commissioner of Commercial Taxes, who by his appellate order dated 9th November, 1959, disposed of both the appeals by a common judgment. The appellate order is annexure C to the statement. The learned Deputy Commissioner held that the railway freight was not liable to be included in the taxable turnover of the assessee and he, therefore, set aside the order of assessment and remanded the cases to the Superintendent for holding an enquiry as to which sums of railway freight were separately charged. In pursuance of this remand order, the Superintendent of Commercial Taxes by an order dated 2nd April, 1961 (annexures D and D1), excluded the railway freight in accordance with the observations of the appellate court. On 29th March, 1966, two notices were issued by Sri B.N. Sarkar, the successor-in-office of Sri E. Hussain intimating to the assessee that it was proposed to review the order dated 9th November, 1959, passed by Sri Hussain, the then Deputy Commissioner. The assessee having shown cause, by an order dated 5th Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, revision and review. Section 24(1) prescribes the provision regarding appeal, and sub-section (2) expressly lays down the period of limitation which would govern the filing of such appeal. Such a period of limitation has been laid down to be forty-five days of the receipt of the notice issued under sub-section (4) of section 14 of the Act. Sub-section (4) of section 24 deals with the jurisdiction regarding revision. It runs in these terms: "Subject to such rules as may be prescribed and for reasons to be recorded in writing, the prescribed authority may, upon application or of its own motion, revise any order passed under this Act: Provided that where the prescribed authority revises any order of its own motion, no proceeding for such revision shall be initiated at any time except before the expiry of four years from the date of such order: Provided.........................." It will thus be seen that the first proviso to section 24(4) clearly lays down that no proceeding for revision shall be initiated beyond four years from the date of such order. This proviso, more or less, is actually an independent statutory provision, although it has been added as a proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute wherein different periods of limitation are prescribed for the exercise of different jurisdictions. There may be one period of limitation prescribed for an appeal, another period for the exercise of revisional jurisdiction and yet another period for the exercise of review jurisdiction. If there is no anomaly in such distinct provisions with regard to periods of limitation being made in the same statute book, there seems to be no reason as to why if periods of limitation are prescribed for the exercise of appellate or revisional jurisdiction, it should be incumbent to read by implication unless absolutely necessary as a necessary intendment, any such period of limitation in the case of review for which the Legislature was quite at liberty to prescribe no period of limitation at all. 6.. Before adverting to the case law on the question of limitation, I may notice here one aspect of the case which was faintly suggested by Mr. Ramanugrah Prasad, learned counsel for the assessee. Mr. Prasad raised a point that the sanction of the Commissioner in the present case was only under rule 39(3) and not under rule 39(2) and that, therefore, the order of review beyond twelve months of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limit of time does not apply to orders passed by the Commissioner. There being nothing to the contrary in section 24(5) nor in any of the rules, the aforesaid observation of the Supreme Court, even though it may be said to be an obiter, cannot be said to be not binding on us. 8.. Mr. Ramanugrah Prasad, learned counsel for the assessee, placed reliance on a number of cases. I propose to deal with each of them. The learned counsel referred to the case of State of Orissa v. Debaki Debi[1964] 15 S.T.C. 153 (S.C.). There the question before the Supreme Court was whether the Orissa Sales Tax Act, 1947, actually set a time-limit for making an order under section 23(3) revising an order of assessment. In the Orissa Sales Tax Act there was a proviso in general terms laying that no order assessing the amount of tax shall be passed after the lapse of thirty-six months from the expiry of the period, and it was held by the Supreme Court that this provision was in substance not a real proviso to the section in which it was placed, but was, in fact, a period of limitation prescribed for all orders of assessment made under any other provision of the Act. The Supreme Court having thus held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hare Krishna Singh v. State of Bihar1964 B.L.J.R. 786. That was also a case under the Bihar Agricultural Income-tax Act (32 of 1948). Section 29 of that Act prescribes a period of limitation for assessment of escaped tax, and section 27A conferred the power of review on the authorities concerned. While there was no period of limitation expressly prescribed under section 27A of that Act, yet in view of the provisions of section 29, which did provide a period of limitation for assessment of escaped income, it was held that the only harmonious construction that could be put upon the two statutory provisions would be that the period of limitation prescribed in section 29 would be deemed to be incorporated for proceedings under section 27A of that Act. In the instant case, there is no anomaly to be resolved. The case of Hare Krishna Singh(1), cited above, would have been relevant if we were dealing with a case under the Bihar Sales Tax Act, 1959, under which by insertion of section 18(1), a provision corresponding to section 29 of the Bihar Agricultural Income-tax Act, 1948, has been incorporated. The Act and the Rules with which we are concerned have no provision for reassessment of an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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