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TMI Blog1990 (9) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and a revised order was made on March 7, 1979. By the time the revised order was passed, the firm which was in existence during the relevant assessment period had been dissolved and a new firm had come into existence. However, before passing 12-A order, a notice was issued to the managing partner and the order of reassessment was made on March 7, 1979. According to the department, it was not aware of the change in the constitution of the firm as also the dissolution of the old firm and coming into existence of the new firm. Aggrieved by the order dated March 7, 1979, the managing partner preferred an appeal before the Deputy Commissioner (Appeals). The appeal was allowed on June 29, 1979. Thereafter, the Commissioner being of the opinion that the order of the appellate authority was prejudicial to the Revenue and was also erroneous, initiated action under section 22-A of the Act. Show cause notice was served on the managing partner. He filed objections and after giving an opportunity of hearing, the Commissioner passed the order. The operative portion of the order reads: "I hereby set aside the appeal order bearing No. AP. 6 7/79-80 passed by the Deputy Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not necessary for the authorities to serve notice on all the partners of a dissolved firm and it is sufficient to serve notice on the person who had been authorised by the firm to represent the firm in the assessment proceedings. In the present case, the notice had been served on the managing partner, whose name had been furnished by the firm during the period when the firm was doing its business. Therefore, neither in respect of 12-A proceedings nor in respect of revisional proceedings under section 22-A of the Act, was there any necessity on the part of the authorities of the department to issue any notice to the appellant, who is an erstwhile partner of the firm. 7.. The learned counsel for the appellant, however, submitted that even on the basis that before making an order of reassessment under section 12-A or the revisional order under section 22-A of the Act, no notice was required to be issued to every one of the partners and it was sufficient to issue notice to the managing partner, the fact remains that the appellant had no notice of the order and that is the ground urged for condonation of delay. 8.. On this aspect of the matter no contra material is placed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be gathered from its language includes three different facets, viz., (1) calling for the records mentioned therein, (2) examination of those records, and (3) passing such orders, with respect thereto as he thinks fit. The Commissioner begins to exercise his power under section 21(2) as soon as he calls for the records in question and the exercise of that power comes to an end when he passes an order in respect thereto. All that section 21(3) says is that the power conferred under section 21(2) is exercisable within four years from the date of the order of assessment, that is proposed to be revised. As mentioned earlier, the exercise of the power under section 21(2) commences as soon as the records mentioned therein are called for. If that act is done within the period mentioned in section 21(3), then no question of limitation arises. Mr. Srinivasan is not right in his contention that the powers of the Commissioner to call for the records, to examine them and to pass such orders as he thinks fit are three independent powers and all those powers should be exercised within the time fixed in section 21(3). They are all facets of one single power, namely, the power to revise and that po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the one and the only way that can be understood and interpreted is that he has initiated the proceedings for revision under section 22-A(1) of the Act. Section 22-A(2) of the Act does not stipulate that the power initiated by calling for the records should also be peremptorily completed within 4 years from the date of the order sought to be revised. All that the section requires is that the power of revision shall be exercisable within four years from the date of the order. If the power of revision can only be exercised only by calling for records and not in a vacuum, then the very first step of calling for records must be of necessity construed as falling within the meaning of the term 'shall be exercisable'. In many a case as in the very case for a variety of good reasons, which cannot be catalogued and stated exhaustively, it will be impossible for the Commissioner to complete the proceedings within four years from the date of the order though he had initiated proceedings by calling for records within that period. We are of the view that on this construction of section 22-A which carries out the purposes and object of that provision, we cannot uphold the contention of Sri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without jurisdiction. If on the other hand, the act of calling for the records, is within four years from the date of the concerned order, every further step would be within time and with jurisdiction. For these reasons, we reiterate the view taken in the two earlier decisions. 12A. Now coming to the facts of the case, it is seen from the records that on February 2, 1982, the Commissioner having noticed that heavy sales tax amount was due from M/s. Shashi Wine Centre he addressed a letter to the Commercial Tax Officer, Arsikere, who is the recovering authority. The said letter reads: "No. MSA. CR. 155/81-82 Office of the Commissioner of Commercial Taxes, Karnataka, "Vanijya Tehrige Karyalaya" Bangalore-9. Dated: February 2, 1982. To The Commercial Tax Officer, Arsikere. Sir, Sub: M/s. Shashi Wine Centre, wholesale wine merchants, Kadur-Recovery of tax in respect of assessments/reassessments finalised on the basis of the suppression of turnover detectedRegarding. ----------- Based upon shop inspection and suppression of turnover detected therefrom, assessments of M/s. Shashi Wine Centre, Kadur, for 2 years as under were finalised by the Commercial Tax Officer (Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to Assistant Commissioner of Commercial Taxes (Assessments), Mysore Division, Mysore, for taking necessary action. This is for your kind information. Yours faithfully, Sd/(O.N. Lingaiah) Commercial Tax Officer, Arsikere." The contents of these letters are self-explanatory. The heavy amount of tax and penalty for the assessment years July 1, 1975 to June 30, 1976 and July 1, 1976 to June 30, 1977, in respect of Shashi Wine Centre, Kadur, had remained unrecovered. When the Commercial Tax Officer was asked to make a report in the matter, he reported, inter alia, that the entire assessment order for 1975-76 made under section 12-A of the Act had been set aside by the appellate authority. Immediately after receipt of the letter dated February 8, 1982, the Commissioner called for the records through his letter dated May 12, 1982. It reads: "RUM. No. 17/82-83 Office of the Commissioner of Commercial Taxes, Karnataka, Bangalore. Dated: May 12, 1982. To The Deputy Commissioner (C.T.) (Appeals), Mysore. Sir, Sub: Review of appeal order in the case of M/s. Shashi Wine Centre, Kadur-Connected records called for. Ref: Your appeal order bearing Nos. 6,7,8 9/79-80 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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