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TMI Blog1974 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... a 1364 B.S. (13th April, 1958), was heard on 13th October, 1958, when the petitioner produced all his books of account. The petitioner's taxable turnover was computed on 26th November, 1958, at Rs. 1,31,931.00 and tax was determined at Rs. 6,423.21 and a penalty of Rs. 50. In the end of October, 1962, the petitioner received a letter dated 29th October, 1962, issued by the Commercial Tax Officer, Central Section, West Bengal (respondent No. 3), stating that the petitioner's files under the said Act as also under the Central Sales Tax Act, 1956, had been transferred to the Central Section and that the said officer had assumed jurisdiction for all the assessments and ancillary matters under both the Acts. The petitioner was also advised that all pending matters would be taken up by the said respondent on dates fixed unless otherwise directed. On 3rd November, 1962, the petitioner received a notice in form IX with a copy of report dated 1st November, 1962, by respondent No. 4, issued by the Assistant Commissioner of Commercial Taxes, Central Section, West Bengal, respondent No. 2. The notice is as follows: "No. 8764 dated 2nd November, 1962. Revision Case No. 98-4/1962-63. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commercial Tax Officer further stated that the order of assessment needed modification, but as he was not competent to review the order of his predecessor in terms of rule 82, he was submitting the application for revision of the assessment in terms of section 20(3) of the Act read with rule 80(5). The petitioner objected to the assumption of jurisdiction by the Assistant Commissioner to revise the assessment contending that the proposed action was without any authority of law and was in violation of the fundamental rights guaranteed by the Constitution. By further representations the petitioner submitted that the Commercial Tax Officer, Central Section, had no authority to deal with its files and the Commercial Tax Officer, China Bazar Charge, who was the appropriate Commercial Tax Officer, had no authority to transfer the files and such transfer was illegal, void and ultra vires the Act. In reply the petitioner was informed by the Assistant Commissioner of Commercial Taxes, Central Section, respondent No. 1, that he was competent to issue the notice under form IX and the revision proceeding which was not bad or illegal, was fixed for hearing on 19th November, 1962. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner's files. It was also contended that the report was to be treated as application for revision which was barred by time. There was a supplementary affidavit-in-opposition on behalf of the Commercial Tax Officer, Central Section, stating further that he filed on 1st November, 1962, an application under rule 82 of the Bengal Sales Tax Rules to the Assistant Commissioner of Commercial Taxes for revising the assessment order dated 26th November, 1958, under section 20(3) of the Act whereon the impugned notice in form IX was issued. The Assistant Commissioner, on vacation of the interim order, passed on 24th November, 1962, an order revising the assessment order of 26th November, 1958. This order was set aside by the Additional Commissioner on 11th February, 1964. The petitioner preferred an appeal to the Board of Revenue against this order, (sic) before the Board of Revenue which was pending but these authorities had not been made parties to the rule, which accordingly became infructuous. In its affidavit-in-opposition the allegations were disputed by the petitioner, but it appears that the said authorities were made parties to the rule. The rule came up for hearing before D. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner nor there appeared to be any delegation of power to the Commercial Tax Officer. There could be no such transfer merely by creation by Government notification the concurrent jurisdiction of the Commercial Tax Officer, Central Section, and the observation in Madanlal Mahawar v. Commercial Tax Officer, Central Section[1965] 16 S.T.C. 1071., that no order of transfer was necessary was merely an obiter. This proposition is supported by the Amendment Act of 1962 itself, which was made retrospective. Accordingly, the transfer purported by the Commercial Tax Officer, China Bazar, as well as the assumption of jurisdiction by the Commercial Tax Officer, Central Section, over the petitioner's case was ultra vires. (IV) In regard to the contention that the order of assessment by the Commercial Tax Officer, China Bazar Charge, was to be deemed to be the order of the Commissioner, on the established proposition of law that the order of the delegates is to be deemed to be the order of the principal, it was held that in the instant case, the legislature by providing a hierarchy of authorities in the Act, has expressly overridden the said general proposition. (V) On the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner dated 24th October, 1962, transferring the files to the petitioner from the jurisdiction of the Commercial Tax Officer, China Bazar Charge, to the Central Section under the Taxes Directorate, West Bengal, and an application for production of this order as an additional evidence in the appeal was filed by the appellants which was seriously objected to by the petitioner. The order impugned in this rule foundered on the finding that no such order was in existence. We felt that the copy of the said order should be on record to enable us to pronounce judgment in the appeal. Accordingly, we allowed the application and further directed that photostat copy of the said order of the Commissioner should be filed in view of the allegations of interpolations. In pursuance thereof the appellants filed a photostat copy of the said order. The petitioner was also given opportunity to examine the original records of the case in court and the records were duly examined by Mr. N.C. Chakravarti and Mr. Paritosh Mukherjee, the learned Advocates for the petitioner-respondent. Though there is no such allegations in the affidavit-in-opposition on behalf of the petitioner, an allegation was made on its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Chakravarti contending that the power delegated under section 15 of the Act read with rule 71 by the Commissioner to the Assistant Commissioner to revise an order passed by the Commercial Tax Officer became infructuous or non est as the then Commissioner M.M. Basu had long vacated the office before the impugned notice or even the order of transfer was issued. This contention is without any substance. A similar contention was raised in Gayadinram v. A.D. Khan[1951] 55 C.W.N. 667., wherein it was held that the delegation was not made in personal capacity but in official capacity. It was further observed that individuals may go and come but the statutory office remains unless the corporation itself ceases to exist. In the absence of revocation which could be done, the successor-in-office must be deemed to have accepted and approved of the delegation made by the predecessor. This decision was followed in Sambhu Das Pyne v. Corporation of CalcuttaA.I.R. 1972 Cal. 273., in which I was a party. It is not the case that the delegation has been revoked or the office of the Commissioner has ceased to exist. We respectfully agree with the view in Gayadinram's case(1) and are of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provision, as in this case, and a power of revision is conferred on the authority, it is to be seen if the power of revision so conferred is circumscribed for particular purposes or in any way restricts assessment of escaped turnover. If there is no restriction, there should be no reason to think that even then the appropriate authority is incompetent or has no jurisdiction to assess any escaped turnover. The question was elaborately considered by the Reference Bench of this Court in the decision in Ram Kanai Jamini Ranjan Pal Private Ltd. v. Member, Board of Revenue, West Bengal[1970] 26 S.T.C. 489. , and it was observed by P.B. Mukharji, C.J., assuming as contended that under the laws of other States specific provisions have been made for escaped turnover, as follows: "This reference must be governed by the Bengal Act and the Rules made thereunder. The language of the statute here and the Rules here are the governing factors. Section 20(3) of the Bengal Act makes it clear that the Commissioner in revision can revise any assessment or order passed. There will be no justification to qualify this power by saying that he cannot revise to bring in escaped assessment. This will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find any warrant for the contention that the opinion of the court on reference has not that conclusiveness on questions of law answered by it as the judgments in other cases. In fact under sub-section (5) of section 21, the High Court is required to deliver judgment containing grounds on which the judgment is based while deciding the question of law. This contention raised by the respondent is thus clearly untenable. The last question relates to the question of limitation and it is connected with the further question if under the law the revenue is entitled to make application for revision. If the Assistant Commissioner in this case is held to have taken action suo motu for revision of assessment, sub-rule (5) of rule 80 will be applicable. This sub-rule provides a limitation for four years from the date of assessment for revision of such assessment and clearly the impugned notice in form IX dated 2nd November, 1962, when the assessment order was completed on 26th November, 1958, is within time. If, however, it is held that the revenue has no right to apply for revision of the order at all, the impugned proceeding can only be, and, as the terms of the notice also indicate, must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the orders passed by the Commissioner. In our opinion also this rule is a special provision which is confined to the orders of the Commissioner and as its terms indicate it cannot be extended to any order which is not passed by the Commissioner. Further, the power to modify the order under rule 82 is connected with the power to review an order of the Commissioner and application for revision has been provided only in connection therewith. Mr. Chakravarti has drawn our attention to the application annexed to the impugned notice, also described by the Assistant Commissioner as the report of the Commercial Tax Officer, Central Section, West Bengal. This officer describes his report as an application under rule 82, which is obviously misconceived, as the said rule, as we have seen, relates to orders passed by the Commissioner himself. The statements made in his report that the assessment order needs modification which he is not empowered to do are based on a misconception of rule 82 and the assertions by a Government Officer of his interpretation of a rule will not alter the basic position in law. Further upon a careful consideration of the provisions of the Act and its Rules we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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