9911796707
TMI Blog1981 (1) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of revenue?" 2.. The material facts giving rise to this reference briefly are as follows: The assessee, a dealer in iron goods, was assessed to tax under the Act for the period from 1st January, 1960, to 31st December, 1960. Best judgment assessment was made by the assessing authority. An appeal preferred by the assessee before the Appellate Assistant Commissioner was dismissed. The assessee then preferred a revision petition before the Commissioner of Sales Tax under section 39(1) of the Act. The revision petition was transferred by the Commissioner under section 30 of the Act to the Deputy Commissioner who, by his order dated 22nd November, 1972, remanded the case for a fresh assessment. The Additional Commissioner of Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 3 to assist him is erroneous in so far as it is prejudicial to the interests of the revenue, he may after giving the dealer or person an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment." The provisions of section 39(2) were subsequently amended, and under the amended sub-section (2) of section 39 of the Act, it has been provided that an order, passed by an officer to whom the Commissioner has delegated his powers under sub-section (1) of section 39, can be revised under the provisions of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by section 21(4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T.C. 113. in a taxing statute like the Bombay Sales Tax Act, 1959, and reliance was placed on that decision by the learned counsel for the department. But, with respect, we are unable to agree with the view taken in H.B. Munshi v. Oriental Rubber Industries Pvt. Ltd.[1974] 34 S.T.C. 113. The decision of the Supreme Court in Roop Chand v. State of PunjabA.I.R. 1963 S.C. 1503., in our opinion, lays down in unambiguous terms that when a delegate exercises powers conferred on him by an authority, he does not exercise powers of his own but only the powers of his principal. In view of this decision of the Supreme Court, it must be held that the Deputy Commissioner, while exercising powers under section 39(1) of the Act, exercised those powers as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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