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TMI Blog1984 (5) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority is not maintainable because the order has become part of the Board's order dated 23rd February, 1972, although no finding has been given by the Board on the issue raised by the applicant-assessing authority?" The Board, however, sent the question of law as mentioned above and not as requested by the Commercial Taxes Officer. Brief facts as the case are that M/s. Rajasthan Small Industries Corporation, Sahadeo Marg, Jaipur (hereinafter referred to as "the assessee"), had filed a revision before the Board of Revenue against the order of the Deputy Commissioner (Appeals I) dated 9th September, 1970. The Board by its order dated 23rd February, 1972, allowed the revision in part. The Commercial Taxes Officer had also filed a revision against the aforesaid order of the Deputy Commissioner (Appeals I) relating to the setting aside of a penalty of Rs. 6,000 against the assessee. When the revision filed by the department came up for consideration before the Board of Revenue, an objection was raised that since the order of the Deputy Commissioner (Appeals I) dated 9th September, 1970, has already become part of the Board's order dated 23rd February, 1972, as such the revision fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also challenged the penalty of Rs. 2,000 under section 16(1)(c) of the Act. The Board of Revenue heard the revision filed by the assessee and by its order dated 23rd February, 1972, held that the tax should have been imposed at the rate of 6 per cent instead of 10 per cent. So far as the imposition of penalty of Rs. 2,000 under section 16(1)(c) of the Act for late filing of returns is concerned, the order of the Deputy Commissioner was maintained. The department had also filed a separate revision challenging the order of the Deputy Commissioner dated 9th September, 1970, by which the penalty of Rs. 6,000 imposed on the assessee under section 16(1)(b) of the Act was set aside. At the time of hearing of this revision the counsel for the assessee raised a preliminary objection that the impugned order of the Deputy Commissioner dated 9th September, 1970, had come up for consideration of the Board in the revision filed by the assessee and the same has been decided by the Board on 23rd February, 1972, and the Board's decision had become final. The learned members of the Board of Revenue held that they were in agreement with the learned counsel that since the impugned order have bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by him; or (b) if an appeal is pending before the appellate authority: Provided also that the Board of Revenue may admit an application for revision after the said period of six months if it is satisfied that the applicant had sufficient cause for not making the application within the said period. .............................. (6) No order under this section shall be passed without giving the dealer as also the authority whose order is sought to be revised or their representatives, a reasonable opportunity of being heard." A perusal of the above provision would show that under sub-section (1) of section 14, the assessing authority can file an application for revision within a period of 3 years of passing of the order sought to be revised. On the other hand, under sub-section (2) of section 14 a dealer may move the Board for exercising its revisional jurisdiction within six months of the date of order sought to be revised. It may also be mentioned that under sub-section (2) of section 14 of the Act, if a revision is filed by a dealer, the Board may call for the record of the proceedings in which the order complained against was passed and after examining the record, sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revision filed by the dealer, the assessing authority is entitled to file a revision though of course within three years and in that case the revision filed by the assessing authority will have to be decided by the Board on merits. Apart from the above provisions of section 14 of the Act itself, which, in our opinion, are clear, the case law cited by the learned counsel for the department also supports our view. In Commissioner, of Income-tax, Bombay v. Amritlal Bhogilal and Co. AIR 1958 SC 868 it was held as under: "The powers of the Appellate Assistant Commissioner, however wide, have to be exercised in respect of the matters which are specifically made appealable under section 30(1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner it would not be open to the appellate authority to entertain a plea about the correctness, propriety or validity of such an order. The order granting registration can be cancelled by the Income-tax Officer himself either under rule 6-B or under section 23(4). It may be cancelled by the Commissioner in exercise of his revisional power under section 33-B; but it cannot be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment by the revising authority is only for the purpose of satisfying itself as to the legality, propriety of the order or regularity of the proceeding and that cannot indicate that the whole assessment proceeding is the subject-matter of revision. To take such a view would be to misapprehend the scope of the revisional power granted to the authority which falls into two categories, the one to be exercised suo motu and the other to be exercised on application by the assessee. The subject-matter of the decision of the revising authority moved by an assessee is in no way affected by the potential power of that authority to take action suo motu if it thought fit. The existence of such a dormant power cannot operate to bring about an enlargement of the scope of the actual decision in the matter." In State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144 (SC); AIR 1967 SC 681, it was held as under: "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 authority, and the other by a superior authority, passed in an appeal or revision, there is a fusion or merger of two order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee as it was filed subsequently. The revising authority, however allowed that revision and restored the order of the Sales Tax Officer. The question that arose was whether the revising authority could, in view of its earlier order, restore the order of the Sales Tax Officer: Held, (i) that section 10 does not contain any provision which destroys the right conferred by section 10(2) of filing a revision in case the revision application of one party has been disposed of. In the absence of such a provision, it would not be appropriate to apply the theory of merger and hold that as soon as a revision application of one of the parties is diposed of, the other party loses the statutory right conferred on him by section 10(2) to file a revision within the period prescribed by section 10(6); (ii) that although the technical rules of res judicata as contained in the Code of Civil Procedure do not apply to proceedings before tribunals other than the civil courts, the general principles of res judicata are of universal application; (iii) that inasmuch as in the earlier revision the question as to whether the turnover returned by the assessee should be accepted or the turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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