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TMI Blog1976 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... les tax and general sales tax on the sales of electrical motors at an aggregate rate of 5 per cent treating the goods as falling under entry No. 22 of Schedule E to the said Act. The Sales Tax Officer "in making the assessment" followed the statutory determination made by the then Commissioner of Sales Tax under section 52 of the said Act in an earlier case and taxed these goods at 3 per cent under entry No. 15 of Schedule C. The surplus amount of tax, which the assessee had collected, was forfeited under the orders of the Sales Tax Officer. The assessee went in appeal before the Assistant Commissioner of Sales Tax against this order. Two points were agitated in that appeal, one of which was regarding the order of forfeiture passed by the Sales Tax Officer. The other contention was regarding the penalty levied by the Sales Tax Officer under section 36(3). The Assistant Commissioner set aside the order of penalty but so far as the order for forfeiture was concerned, confirmed the same. Against this order of the Assistant Commissioner dated 31st October, 1963, the assessee went in second appeal before the Sales Tax Tribunal and, while the second appeal was pending before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake notice of the same at this stage. Sub-sections (1), (2) and (6) of section 20 of the said Act 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) Deputy Commissioners, (b) Assistant Commissioners, (c) Sales Tax Officers, and (d) other officers and persons, and give them such designations (if any), as that Government thinks necessary............... (6) Assistant Commissioners, Sales Tax Officers and other 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, subject to such conditions and restrictions as the State Government may by general or special order impose, by an order in writing delegate to them either generally or as respects any particular matter or class of matters." It may be mentioned here that sub-section (5) of section 20 provides that a Deputy Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of section 57(1) of the said Act, as an officer appointed under section 20 to assist the Commissioner. It appears to us, on a plain reading of the provisions of sub-section (2) of section 20, to which we have already referred, that an Assistant Commissioner is one of the officers the State Government is entitled to appoint to assist the Commissioner. In fact, sub-section (2) of section 20, which confers on the State Government the appointing power as far as the post of an Assistant Commissioner is concerned, in terms, provides that such appointment is to be made to assist the Commissioner in the execution of his functions under the said Act. The language of clause (a) of sub-section (1) of section 57 read with section 20(2) of the said Act, therefore, suggests that an Assistant Commissioner must be regarded as an officer appointed to assist the Commissioner in the discharge of his functions under the said Act. The Commissioner would, therefore, subject to the provisions of section 56, be entitled to revise any order passed by an Assistant Commissioner after following the procedure laid down in section 57 and the relevant rules. The contention of Mr. Joshi, the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act and the Rules made thereunder, there is no provision at all for the appointment of an Assistant Commissioner as an Appellate Assistant Commissioner as such. An Assistant Commissioner hearing appeals is only an Assistant Commissioner to whom the work of hearing appeals has been assigned or allocated by the Commissioner. It is merely by virtue of such assignment or allocation of work that a particular Assistant Commissioner or particular Assistant Commissioners hear appeals under section 55(1). There is no separate or independent appointment of these Assistant Commissioners as Appellate Assistant Commissioners as contended by Mr. Joshi. In connection with this question, it would not be out of place to refer to a decision of a Division Bench of this Court in H. B. Munshi, Commissioner of Sales Tax, Bombay v. Oriental Rubber Industries Pvt. Ltd.(1) Although the question in that case was somewhat different, some of the observations in the judgment are useful for the determination of the question before us and lend some support to the view which we have taken as indicated above. In that case, the petitioner-company, carrying on the business of manufacturing rubber belt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on him by enactment, was a delegate of the Commissioner or an agent of the Commissioner. Although in that case it was not disputed that the Deputy Commissioner exercising his power or performing his functions under sub-section (5) of section 20 would be one of the officers appointed to assist the Commissioner (see page 123 of the Reports), yet there are certain observations in the judgment of the Division Bench, which are relevant for the purpose of the case before us, and these are as follows (page 124 of the Reports): ".....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 the 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........" If a Deputy Commissioner is to be regarded as an officer appointed under section 20 to assist the Commissioner, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess he is named as one entitled so to do under the Rules made under section 22(1) of that Act. The Division Bench further observed that, it might well be that the power to hear and decide an appeal is given to an authority not appointed under section 3. It was in view of these provisions that the Division Bench of the Madhya Pradesh High Court came to the conclusion that an Appellate Assistant Commissioner could not be regarded as a person appointed under section 3 of that Act to assist the Commissioner. In view of the fact that the provisions of the Bombay Sales Tax Act, 1959, with which we are concerned, are quite different, we fail to see how this decision can be of any assistance to Mr. Joshi in his aforesaid contention. The next contention urged by Mr. Joshi was that under section 55(2) of the said Act a right was conferred on the assessee to go by way of second appeal against an order passed in appeal by the Assistant Commissioner either to the Commissioner or to the Tribunal and that such a right could not be taken away by the Commissioner exercising the powers of revision under sub-section (1) of section 57. We are unable to see any force in this contention. If the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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