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TMI Blog1981 (6) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty was leviable on the product, then it is exempt from levy of tax under the Act and consequently under the Central Act. The Assessing Authority vide orders dated 25th November, 1971, 13th January, 1972, and 22nd February, 1972, for the years 1968-69, 1969-70 and 1970-71, respectively, finalised the assessment and held that the sale of transmission rubber belting was not taxable under the Act and consequently under the Central Act. The internal audit pointed out that the Assessing Authorities while framing the assessment of the petitioner for the abovementioned years had wrongly granted exemption from tax of the sales of the transmission rubber belting in view of the judgment of this Court in the case of Laxmi Machinery Store v. State of Punjab [1977] 39 STC 87. Respondent No. 2, in exercise of powers under section 21(1) of the Act, issued notices to the petitioner indicating his intention to reopen the assessment for the years 1968-69, 1969-70 and 1970-71. This action was taken suo motu. The petitioner appeared before respondent No. 2 and sought adjournments. On 12th November, 1979, the petitioner moved an application for a short adjournment because his counsel was busy in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a tax-free item. The internal audit note did not give any information about suppression of sales and stocks. It only pointed out that the order was against law. Full opportunity was given to the petitioner to present its case but despite repeated adjournments being given nobody turned up. The counsel appeared on 16th July, 1979, and made a request for adjournment. The request was allowed. The case was adjourned to 8th August, 1979. It was again adjourned to 27th August, 1979, on the request of the learned counsel. On that day neither the learned counsel nor the dealer appeared, yet the case was adjourned to 17th September, 1979, as requested by an employee of the petitioner. Nobody appeared on that date. The case was adjourned to 8th October, 1979. None appeared on that date also. A fresh notice was issued for 29th October, 1979. On that date again a request was made for adjournment on the plea that his freshly engaged counsel was not free. Since the authority did not take the request to be genuine, the case' was not adjourned. In the present case, the assessment was made by Shri R.N. Sant, who was posted as an Excise and Taxation Officer. The powers under section 21(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nication of the order, may call for and examine the record of any such case and pass such orders thereon as it thinks just and proper. (4) No order shall be passed under this section which adversely affects any person unless such person has been given a reasonable opportunity of being heard." Mr. Sarwal, the learned counsel for the petitioner, has argued that the Assessing Authority had decided the case according to the interpretation of law by the highest departmental authorities at that time. The fact that the High Court had taken a different view and had held transmission rubber belting to be taxable and that this fact had been brought to the notice of the revisional authority, respondent No. 2, leads to an irresistible conclusion that the case fell within the ambit of section 11-A of the Act. He has argued that in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, Bihar and Orissa [1959] 35 ITR 1 (SC), their Lordships of the Supreme Court have held that the word "information" in section 34(1)(b) of the Income-tax Act included information as to the true and correct state of law and so would cover information as to relevant judicial decisions. Mr. Sarwal has further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Authority at the time of decision of the case. If the revisional authority relies upon or takes into account some material which was not present before the Assessing Authority, then according to a Full Bench decision of this Court in Hari Chand Rattan Chand Co. v. Deputy Excise and Taxation Commissioner (Additional), Punjab [1969] 24 STC 258 (FB), the Assessing Authority can exercise its suo motu powers only within a period prescribed under section 11-A of the Act. The relevant observations of their Lordships are as under: ".........................................The revisional authority is entitled to call for the record of any case decided by the assessing authority or any appellate authority in order to see whether the order passed is proper or legal. Similarly he can call for the record of any proceedings pending before any assessing authority or appellate authority in order to determine the legality or propriety of the proceedings. But, before he decides to exercise this power, he must come to the conclusion that the order or the proceedings suffer from the vice of impropriety or illegality and for this conclusion he has to confine himself to the record which is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to sit in revisions of his colleague. This argument is fallacious. The Assessing Authority in this case was Excise and Taxation Officer. The revisional powers have been conferred on an officer, who is Assistant Excise and Taxation Commissioner, who is clearly a superior officer than the Assessing Authority. There is thus no irregularity in conferring powers on respondent No. 2. It was faintly argued that respondent No. 2 could not claim to be acting suo motu when he had already received information from audit section. The argument is-wholly meritless. In our adversary system of jurisprudence either party aggrieved by an order, if law so provided, could file a revision petition. For that a period of limitation is provided. So, however, if a third person brings to the notice of the revisional authority any illegality in an order passed by a subordinate officer then the revisional authority can suo motu take action and correct the order if it is found illegal or improper. Simply the receipt of information from an outside source does not render an order of the revisional authority out of the purview of suo motu action. Mr. Sarwal has not been able to cite any authority in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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