9911796707
TMI Blog1974 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... bber beltings and was registered as a dealer under the Bombay Sales Tax Act, 1959 (hereinafter referred to as the "Act"). In respect of their turnover pertaining to sales of rubber beltings during the periods 1st January, 1960, to 31st March, 1960, and 1st April, 1960, to 31st March, 1961, it had collected sales tax at the rate of 3 per cent, but in respect of the said turnover for the said two periods by his assessment orders dated 17th September, 1963, the then Sales Tax Officer held that the petitioner was liable to pay sales tax in the aggregate at 5 per cent on the total sales. Feeling aggrieved by these assessment orders, the petitioner-company filed appeals before the Assistant Commissioner of Sales Tax. During the pendency of these appeals, the petitioner-company came across a judgment of the Commissioner of Sales Tax in view of which no sales tax was attracted at all in respect of sales of rubber beltings that had been effected by the petitioner-company and this judgment of the Commissioner of Sales Tax was relied upon by the petitioner-company before the Assistant Commissioner of Sales Tax. By his orders in appeals dated 13th April, 1964, the Assistant Commissioner of Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely (a) that section 37 of the Act under which the amounts had been forfeited was ultra vires the State Legislature; (b) that the 1st respondent being the Commissioner of Sales Tax had no power under section 57 of the Act to revise the orders of the Deputy Commissioner, which must be deemed to be an order passed by the Commissioner himself as the Deputy Commissioner could pass orders only as delegate of the Commissioner and not in his own right; and (c) that mens rea ought to have been proved before forfeiture could be directed because the provision for forfeiture was quasi-criminal in nature. On these grounds the petitioner-company sought an appropriate writ or order from the court quashing or setting aside the revisional orders passed by the Commissioner on 12th December, 1966, and the notices of demand issued pursuant thereto by the 2nd respondent as well as for appropriate writ or orders restraining the respondents from enforcing the same. At the hearing the challenge to the vires to section 37 of the Act was not pressed in view of the unreported judgment of a Division Bench of this Court delivered on 25th November, 1971, in Special C.A. No. 818 of 1971, and a right to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs (a) and (b) of the petition and directed the Commissioner of Sales Tax (respondent No. 1) and the Sales Tax Officer (respondent No. 2) to pay the petitioner's costs. The appellants (Commissioner of Sales Tax and Sales Tax Officer-original respondents) have come up in appeal challenging the judgment and order of the learned Judge. In support of the appeal the learned Advocate-General for the appellants has raised a couple of contentions before us. In the first place, he contended that on a plain reading of the relevant provisions contained in section 20(5) in conjunction with the provisions of sections 55 and 57 of the Act it was an error on the part of the learned Judge to have taken the view that the Act does not confer on the Deputy Commissioner any independent or direct powers at all or that the only powers that he had or could exercise were the powers conferred on him by statutory delegation that was to be found in sub-section (5) of section 20 of the Act. He urged that on a close scrutiny of the provision contained in section 20(5) it would appear clear that the powers of the Deputy Commissioner have been conferred by the statute itself and the powers that have been confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment but he would like to reserve that point for higher court if at all the matter is carried further. The main question, therefore, which arises for our consideration in this appeal is whether the orders passed by the Deputy Commissioner on 16th April, 1965, could be revised by the Commissioner of Sales Tax in exercise of his revisional jurisdiction under section 57(1)(a) of the Act and the question, in our view, must principally depend upon the interpretation of the provisions contained in section 20(5) read with the provisions contained in sections 55 and 57 of the Act. It would, however, be desirable to set out the provisions of sub-sections (1) to (6) of section 20 of the Act in order to appreciate the rival contentions urged before us. The said provisions of section 20 of the Act before its amendment by Maharashtra Act 21 of 1970 ran as follows: "20. (1) For carrying out the purposes of this Act, the State Government shall appoint an officer to be called the Commissioner of Sales Tax. (2) To assist the Commissioner in the execution of his functions under this Act the State Government may appoint Additional Commissioners of Sales Tax (if any), and such number of,- (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that are created for the purpose of carrying out the purposes of the Act and under sub-section (1) it is provided that the State Government shall appoint an officer to be called the Commissioner of Sales Tax. Section 2(7) defines the expression "Commissioner" as follows: " 'Commissioner' means the person appointed to be the Commissioner of Sales Tax for the purposes of this Act." Under sub-section (2) of section 20 it Is discretionary with the State to appoint Additional Commissioners of Sales Tax (if any) and such number of Deputy Commissioners, Assistant Commissioners, Sales Tax Officers and other officers and persons and give them such designations as the Government thinks necessary, in order that these officers assist the Commissioner in execution of his functions under the Act. Sub-section (3) deals with the territorial jurisdiction of the Commissioner which is the whole of the State of Maharashtra and also an Additional Commissioner of Sales Tax who shall have jurisdiction over the whole of the State or where the State Government so directs, over any local area thereof and all other officers shall have jurisdiction over such local areas as the State Government may specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereupon the powers or duties exercisable or performable by such Deputy Commissioner before such direction was issued, shall be restored to him. The provisions of sub-section (5), therefore, make the position quite clear. In the first place it is the enactment which confers all powers upon the Deputy Commissioner and the scope and ambit of such powers conferred upon the Deputy Commissioner has been defined by reference to the powers of the Commissioner. Such conferment of powers on the Deputy Commissioner is again made subject to the Commissioner's power to issue direction as to which particular powers should not be exercised by the Deputy Commissioner and upon issue of such direction the Deputy Commissioner shall cease to exercise such power, but upon withdrawal of such direction those powers automatically get restored to such Deputy Commissioner. On a plain reading of subsection (5) of section 20, therefore, it seems to us very clear that there is no question of there being any statutory delegation in respect of powers and duties to the Deputy Commissioner nor is there any delegation of such power by anybody to him, and if that be so, it will be difficult to hold that the Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (5) of section 20 of the Act a view is taken that the Deputy Commissioner exercises his powers and performs functions in his own right, the theory that any order passed by him should be regarded as an order having been passed by the Commissioner himself and, therefore, such order is not revisable by the Commissioner must be rejected. Turning to the provisions of sections 55 and 57, which provisions have also to be read in conjunction with the provisions of section 20, the above view of ours get strengthened. Section 55 deals with appeals and the hierarchy of authorities to which appeals could be preferred one after the other. Under sub-section (1) an appeal from every original order not being an order mentioned in section 56 passed under the Act or the Rules made thereunder, has been provided for (a) to the Assistant Commissioner, if the order is made by a Sales Tax Officer or any other officer subordinate thereto, (b) to the Commissioner, if the order is made by an Assistant Commissioner and (c) to the Tribunal, if the order is made by a Deputy Commissioner, Additional Commissioner or Commissioner. Sub-section (2) of section 55 provides for second appeal and it enacts that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal lies under section 55 and no appeal has been filed, no proceedings in revision under this section shall be entertained upon application. (3) No order shall be passed under this section which adversely affects any person, unless such person has been given reasonable opportunity of being heard. (4) If the Tribunal rejects any application for revision under this section, the Tribunal shall record the reasons for such rejection." It will appear clear from the contents of section 57 that there are two authorities on whom revisional jurisdiction has been conferred and these two authorities would be exercising their revisional jurisdiction in different fields; whereas under clause (a) of sub-section (1) of section 57 power has been conferred upon the Commissioner, of his own motion within the specified period, to call for and examine the record of any order passed by any officer appointed under section 20 to assist him and to pass such order thereon as he thinks just and proper, under clause (b) of sub-section (1) of section 57 such revisional power is to be exercised by the Tribunal, upon an application made to it against an order of the Commissioner [not being an order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are conferred on him and, on that basis, further come to a conclusion that the order passed by the Deputy Commissioner should be regarded as one having been passed by the Commissioner himself disabling himself to exercise the revisional jurisdiction conferred upon him under section 57(1)(a) of the Act. It is, therefore, not possible to accept the view taken by the learned judge that, in the instant case, the Commissioner of Sales Tax was not entitled to exercise the revisional jurisdiction over the orders passed by the Deputy Commissioner on 16th April, 1965. Mr. Chagla, appearing for the petitioner-company, fairly conceded before us that in view of the language employed in sub-section (5) of section 20 of the Act it was not possible for him to say that there was any statutory delegation contemplated under the said provision or that any powers or functions had been delegated to the Deputy Commissioner. In fact, he fairly stated before us that on a reading of sub-section (5) of section 20, the view which we are taking would be the proper view, namely, that it is by the enactment itself that the Deputy Commissioner has been conferred powers and that those powers have been defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. As we have indicated above, on a plain reading of clause (a) of sub-section (1) of section 57 any order passed by the Deputy Commissioner in second appeal has been made subject to revisional jurisdiction of the Commissioner under the said provisions because the Deputy Commissioner must be held to be and is in fact an officer appointed under section 20 to assist the Commissioner and, therefore, any order passed by the Deputy Commissioner in second appeal would be subject to the exercise of revisional jurisdiction by the Commissioner. Mr. Chagla, however, contended that if the appeals preferred by the petitioner-company had not been transferred to the Deputy Commissioner administratively and had been heard by the Commissioner eo nomine, then those orders of the Commissioner obviously could not be subjected to revisional jurisdiction of the Commissioner himself and, according to him, the question whether the order passed in second appeal would be subject to revisional jurisdiction or not could not be made to depend whether second appeals are heard by one or the other of the three categories of officers who are competent to hear the same. It is not possible to accept this submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise all such powers and perform all the duties that are conferred or imposed upon the Commissioner by or under the Act and, in that sense, the Additional Commissioner as well as the Deputy Commissioner do possess co-extensive powers, subject, of course, to the Deputy Commissioner being deprived of some of his powers under specific direction issued by the Commissioner under sub-section (5). But the scheme and the provisions of section 20 and particularly sub-section (8) of section 20 make the position very clear that there is hierarchy of officers contemplated by the Act and the subordination of the officers has been specifically provided for by sub-section (8) of section 20. Sub-section (8) of section 20 runs as follows: "All officers and persons appointed under sub-section (2) shall be subordinate to the Commissioner; and the subordination of officers (other than the Commissioner), and of persons, amongst themselves shall be such as is prescribed." "Prescribed" obviously means prescribed by the Rules. The aforesaid provision, therefore, clearly enacts that all officers and persons appointed under sub-section (2), who are Additional Commissioners, Deputy Commissioners, Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, the entire scheme of appeals and revisions contained in sections 55 and 57 of the Act based on hierarchy of the officers, inter se, will become nugatory. The next contention of Mr. Chagla was based on the provisions of sub-section (6) of section 20 in which the concept of delegation, according to him, has been clearly indicated. According to Mr. Chagla, under subsection (6), at any rate, it should clearly appear that so far as Assistant Commissioners, Sales Tax Officers and other officers are concerned, there has been no conferment of powers on them by the enactment itself, for, it has not been enacted in sub-section (6) that these officers "shall have and exercise all the powers and perform all the duties" but it enacts that these officers "shall, within their jurisdiction, exercise such of the powers and perform such of the duties of the Commissioner under this Act, as the Commissioner may,... by order in writing delegate to them either generally, or as respects any particular matter or class of matters". He, therefore, urged that it was clear from the reading of sub-section (6) that, at any rate, officers like Assistant Commissioners, Sales Tax Officers and other officers b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated In subsection (6) of section 20, the provision contained in sub-section (6) should be interpreted as being a piece of conditional legislation In the sense that powers should be deemed to have been conferred upon these officers by enactment itself subject to the condition that the Commissioner must issue an order delegating such powers and duties as he thinks fit to confer or impose on them and If the provisions of sub-section (6) were looked at from this angle, no difficulty would arise in coming to the conclusion that the officers mentioned in subsection (6) of section 20 could never be regarded as delegates or agents of the Commissioner. That is one way of looking at the matter. However, there is another way in which we would like to look at the matter and it is this: After all the enactment with which we are concerned is a taxing statute like the Bombay Sales Tax Act, that it contains provisions indicating hierarchy of officers being appointed for carrying out the purposes of the Act, that it also contains subordination of such officers, inter se, and what is more, it contains complete code of remedies under sections 52 to 62A in Chapter VII of the Act, which are available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving overlapping revisional jurisdiction and leading to a possible conflict of decisions being arrived at by these two authorities. He pointed out that though under clause (b) of sub-section (1) of section 57 the Tribunal had been empowered to exercise revisional jurisdiction against an order of the Commissioner [not being an order passed under sub-section (2) of section 55 in second appeal], it was conceivable that if a Deputy Commissioner or an Additional Commissioner were to pass an order against the original order made by an Assistant Commissioner under clause (b) of sub-section (1) of section 55, such an order of a Deputy Commissioner or an Additional Commissioner would be open to revisional jurisdiction, both of Commissioner acting under clause (a) of sub-section (1) of section 57 as well as of Tribunal under clause (b) of sub-section (1) of section 57 and, therefore, the two authorities having the same revisional jurisdiction are likely to come to a conflicting decision. In our view, the apprehension that such overlapping of jurisdiction of the two authorities would lead to a conflicting decision is rather far-fetched and in practice it could be shown as unfounded. If the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in revision or by way of appeal. In such a case, it is quite clear that the provisions of clauses (a) and (b) of sub-section (1) of section 57 will have to be read harmoniously, and it can be presumed that the authorities on whom such revisional jurisdiction has been conferred by the enactment would exercise their revisional jurisdiction harmoniously. In a case where the Commissioner sought to exercise such revisional jurisdiction when the matter was already pending in appeal or revision before the Tribunal, it is inconceivable that the Commissioner would seek to proceed with his revisional power in case of it being brought to his attention by the assessee that the matter was already pending before the Tribunal. Even if he sought to do so, we may point out that any order passed by him would again be subject to the revisional jurisdiction of the Tribunal and, therefore, no real prejudice could be caused to the assessee. In our view, therefore, the anomaly of overlapping jurisdiction leading to a conflicting decision does not present any difficulty in placing the interpretation which we have placed on the provisions of section 20(5) and section 20(6) of the Act. Lastly, Mr. Chagla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we do not think that such limited interference by way of revision under section 57(1)(a) of the Act would be either incongruous or anomalous to the detriment of an assessee. In fact, it would be to his advantage, for, if it were the Deputy Commissioner who was exercising the revisional jurisdiction, in the first instance, against an order which has been passed in favour of an assessee previously, the assessee would be enabled to bring the injustice caused to him to the notice of the Additional Commissioner and, similarly, if the Additional Commissioner's orders were against the assessee, he would be again entitled to bring the injustice caused to him to the notice of the Commissioner himself and get injustice rectified. Exercise of revisional jurisdiction in the aforesaid manner would be preferable to a situation where no exercise of revisional jurisdiction at all would be possible if Mr. Chagla's contention that all these officers should be regarded as delegates or agents of the Commissioner were to be accepted. If the theory that Deputy or Additional Commissioners are acting as delegates or agents of the Commissioners were to be accepted, the entire revisional jurisdiction co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. It was contended before the court that the order which could be revised by the State Government under section 42 had to be an order passed by an officer in his own right and not an order passed either by the State Government itself or by an officer exercising the power delegated to him by the Government under section 41 and that contention was accepted and the court came to the conclusion that having regard to the relevant provisions contained in the enactment, particularly the provisions contained in section 41 and section 42 of the said Act, the Government could not revise the order passed by Shri Brar who had exercised his powers in place of the Government. Relying upon this decision, an argument was advanced before the learned Judge and also by Mr. Chagla before us that, in the instant case also, we should take the view that the order passed by the Deputy Commissioner in second appeal should be regarded as an order passed by the Commissioner himself, the former being regarded as a delegate or an agent of the latter and, therefore, the Commissioner was incompetent to exercise his revisional jurisdiction over such order. It is not possible to accept this contention of Mr. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions contained in sections 20(5), (6) and (8), 55 and 57 of the Act. The scheme which is obtained under the Bombay Sales Tax Act is entirely different from the scheme which obtained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, and it is in view of the scheme and from the examination of the relevant provisions of the Act in this case that we will have to consider what interpretation should be put upon the provisions contained in section 20(5) of the Act. In other words, the provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, could never be regarded as being in pari materia anywhere similar to the provisions contained in the Act with which we are concerned. Placed in such a situation, what rule of interpretation could be applied has been clearly stated in the following passage occurring in Craies on Statute Law, 7th Ed., p. 133, to which our attention was invited by the learned Advocate-General. The relevant passage runs as follows: "In the interpretation of statutes the courts decline to consider other statutes proceeding on different lines and including different provisions, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been contemplated to be appointed by the State Government for carrying out the purposes of the Act and their hierarchy has been indicated and the subordination, inter se, has also been indicated and it is in the context of the hierarchy and the subordination, inter se, of officers that the provisions of sections 55 and 57 have to be understood. We are, therefore, clearly of the view that there would be no question of there being any scope for repeated interference by way of revisional jurisdiction arising under the provisions of the Act with which we are concerned. Having regard to the above discussion, we are of the view that the view taken by the learned trial Judge on the principal contention urged in the petition before him cannot be sustained and, in our view, the orders passed by the Deputy Commissioner in second appeal on 16th April, 1965, were clearly revisable by the Commissioner under section 57(1) (a) of the Act. The third contention pertained to the plea of absence of mens rea and the contention was that having regard to the facts which obtained in the case it could not be said that the petitioner-company had collected sales tax knowing that such collection was ille ..... X X X X Extracts X X X X X X X X Extracts X X X X
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