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TMI Blog1977 (4) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax, however, issued notices under section 23(4) of the Act for revising the orders of assessment and, while that matter was pending, by notice dated 21st March, 1975, the Commissioner of Sales Tax purported to revise the very same assessments. Before the Commissioner, the matters were posted to 21st April, 1975, and were adjourned to 29th April, 1975, and readjourned to 30th April, 1975. On that date, the assessee wanted to know the reasons for the initiation of the suo motu proceeding for revision. On 2nd May, 1975, the grounds were furnished to the petitioner's Advocate at Cuttack fixing 7th May, 1975, for hearing. The intimation sent by his counsel was received by the petitioner on 9th May, 1975, and as such the petitioner could not instruct his counsel on facts. The Commissioner passed his orders on 26th May, 1975, enhancing the assessments. These orders of the Commissioner enhancing the tax demand are assailed in these two applications. Two contentions have been raised in support of the applications: firstly, jurisdiction under section 23(4) of the Act could not have been exercised inasmuch as the orders of assessment had been affirmed by the appellate authority and rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax Officer or by the Sales Tax Officer and within two years from the date of passing of any order other than an appellate order by the Additional Commissioner, Deputy Commissioner or the Assistant Commissioner, as the case may be, call for the record of the proceedings in which such order was passed and revise any such order." Section 23(4)(a) of the Act authorises the revisional jurisdiction to be exercised by the Commissioner at the instance of the dealer and/or on his own motion. Rule 79 deals with revision applications by the dealer while rule 80 is in respect of exercise of suo motu jurisdiction. There is no dispute before us that on account of the opening clause in section 23(4)(a) of the Act, the provision in rule 80 must operate and control the revisional jurisdiction conferred by the statute. Sub-section (4)(a) vests the power of revision in the Commissioner against orders of authorities under the Act excepting the Tribunal or the Additional Tribunal while rule 80 excludes application of Commissioner's suo motu jurisdiction in regard to appellate orders of the Additional Commissioner, Deputy Commissioner or the Assistant Commissioner. Rule 79 contemplates a revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Sales Tax and each of them was dismissed by the appellate authority for non-removal of defects. The order of dismissal admittedly was under rule 49 of the Rules. Mr. Mohanty for the petitioner contends that even when an appeal was summarily dismissed for non-removal of defects, the order of assessment had merged in the appellate order of the Assistant Commissioner and, therefore, the restriction under rule 80 became operative and excluded the Commissioner's revisional jurisdiction. Learned standing counsel, on the other hand, has contended that it is not every order of the appellate authority that leads to merger of the original order in the appellate order and, therefore, when the appeals had been dismissed summarily there was no decision on merit at all of the appellate authority and the principle of merger, therefore, is not attracted. We shall now proceed to examine this interesting question. In the case of Gojer Brothers (P.) Ltd. v. Shri Ratan Lal SinghA.I.R. 1974 S.C. 1380., the Supreme Court pointed out: "The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deputy Commissioner of Commercial Taxes 'because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revision'. The attention of the court was drawn to Amritlal Bhogilal's case(1), to which we have already referred, but Ramaswami, J., who spoke for the court, said: 'But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.' These observations cannot justify the view that in the instant case there can be no merger of the decree passed by the trial court in the decree of the High Court. The court, in fact, relied on Amritlal Bhogila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by it. In all these three cases, after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it......... It is this principle, viz.. that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere confirmation.........." It is on these principles that Mr. Mohanty for the petitioner contended that even a summary dismissal of the appeal had the effect of merger of the original order of assessment in the appellate order of dismissal leading to confirmation. Learned standing counsel, on the other hand, had relied upon the decisions in the cases of Amritlal Bhogilal[1958] 34 I.T.R. 130 (S.C.); A.I.R. 1958 S.C. 868. and Madurai Mills[1967] 19 S.T.C. 144 (S.C.); A.I.R. 1967 S.C. 681. These c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding on the other question was indeed sufficient to dispose of the matter. Since the contention had been canvassed with equal emphasis we proceeded briefly to deal with it. Admittedly, in the notice issued in the suo motu revision proceeding for the two years, no grounds had been indicated and rightly the assessee, therefore, required to be informed of the grounds upon which the proceedings had been initiated. As already indicated, the grounds were provided only on 2nd May, 1975, and the hearing had been fixed to 7th May, 1975. The assessee comes from Kantabanji and the interval of four days between the date of communication of the grounds and the date of hearing, in our opinion, was not indeed reasonable. The anxiety on the part of the Commissioner to close the proceeding was possibly to avoid the limitation of three years provided in rule 80 and the limitation was to set in by 26th May, 1975, in the instant case. As a fact, the impugned orders were passed on the last day of limitation. The fact that proceedings had been commenced belatedly is no justifying ground to take away the right of being given a fair hearing to the assessee. 6.. On the analysis presented above, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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