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TMI Blog2012 (10) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessee. Whether the order passed by the Joint Commissioner setting aside the revised assessment order is proper and could be maintained, as the said order was passed during the pendency of the writ petition in the High Court – Held that:- Order was passed while the respondent was fighting out the litigation in the High Court and therefore, it was not possible for the assessee to give his entire focus and attention and also to give full concentration to the aforesaid proceeding pending before the Joint Commissioner. The learned counsel appearing for the appellant also could not dispute the fact that the respondent was somewhat handicapped in contesting the aforesaid matter very effectively before the Joint Commissioner - matter remited to the Joint Commissioner once again to hear the parties - CIVIL APPEAL NOS. 6889 to 6893 OF 2011 - - - Dated:- 10-8-2011 - Dr. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ. JUDGMENT Dr. MUKUNDAKAM SHARMA, J. 1. Delay condoned in SLP (C) No. 8424 of 2010. 2. Leave granted. By this common judgment and order, we propose to dispose of these appeals as they involve similar issues both of facts as also of law and therefore, they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate sales under Section 3(a) of the CST Act 1956 into the intra-State sales. Respondent on 10.3.2005 filed an application for refund of excess amount of tax after adjustment of the amount to be paid by Respondent. Accordingly, on 21.8.2006 notice was issued by Deputy Commissioner of Commercial Taxes to Respondent to file its refund application before the Joint Commissioner of Commercial Taxes since the amount refundable to the Respondent is above Rs. 25,000/-. Thereafter in the year 2006, as is alleged by the respondent, the Deputy Commissioner of the Dhanbad Circle got changed and the new Deputy Commissioner examined the revised assessment orders of the Respondent and he opined that the revised assessment orders do not conform to the appellate direction and Deputy Commissioner informed the Joint Commissioner of Commercial Taxes (Administration) about his observations. The Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad [Appellant No. 4] then initiated the proceeding suo motu under Section 46(4) of the adopted Bihar Finance Act, 1981 [now repealed] and issued notice/Memo No. 744 dated 1.8.2007 directing the Respondent to furnish the complete sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2006, it is alleged by the respondents that, the Deputy Commissioner of the Dhanbad Circle got changed and the new Deputy Commissioner examined the revised assessment orders of the Respondent and he opined that the revised assessment orders do not conform to the appellate direction and as such do not have any merit as they were re-assessed on the basis of same facts for converting the then inter-State sales into the intra-State sales, which resulted the claim of refund and Deputy Commissioner informed the Joint Commissioner of Commercial Taxes (Administration) about his observations. Pursuant to this Joint Commissioner of Commercial Taxes (Administration) initiated the proceeding suo motu under Section 46(4) of the Bihar Finance Act, 1981 and issued notice No. 850 dated 06.09.2007 directing Respondent to furnish the complete sets of books of account, in order to determine the legality and propriety of the said revised assessment orders conforming to the appellate order. Thereafter, Respondent No. 2 filed two Writ Petitions before the High Court of Jharkhand which were registered as W.P. (T) Nos. 5892 and 5895 of 2007 praying for the direction to the appellants for immediate ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether such action was bad for not having been initiated within a reasonable time; c) Whether the order dated 26.11.2007 passed by the Joint Commissioner setting aside the revised assessment order dated 26.12.2003 is proper and could be maintained; 10. We propose to deal with the aforesaid three issues one after the other and record our reasons for coming to the decision in each of the aforesaid issues; Issue 1: Whether exercise of Suo Motu power of revision as provided under Section 46(4) of the BFT Act, 1981 could be upheld; 11. Section 46 of the BFT Act, 1981 with which we are concerned in the present case came to the statute book with the enactment of Bihar Finance Act, 1981. The aforesaid Act was a consolidated Act which was passed by the State Legislature amending the law relating to levy of tax on sale and purchase of goods. In the said Act, Section 45 provides for the provision of filing an appeal whereas Section 46 of the Act lays down the provision of revision. In the present case, we are only concerned with the provision of revision and in our estimation, the entire provision of Section 46 should be extracted hereinafter. 46. Revision - (1) Subject to such rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below:- 10. Amendment of section 46 of the Bihar Act V, 1981 (Part I). - In sub-section (3) of section 46 of the said Act for the word quot; sixty quot; the word quot; ninety quot; shall be substituted. (2) For sub-section (4) the following sub-section shall be substituted namely :- quot;4 (a) The Commissioner may, on his own motion call for and examine the records of any proceeding in which any order has been passed by any other authority appointed under section 9, for the purpose of satisfying himself as to the legality or property of such order and may, after examining the record and making or causing to be made such enquiry as he may deem necessary, pass such order as he thinks proper. 13. By inserting a provision namely Section 7 of the Bihar Finance (Amendment) Ordinance, 1989, clause (b) of sub-Section (4) has been deleted with effect from May, 1989. Therefore, the statutory provision that now stands and is operative is that Section 46 provides for a revision of all appellate and other orders passed by various authorities under the BFT Act, 1981. According to the statutory provision as applicable, power of revision is vested with the Tribunal and the Joint Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as prescribed under Article 137 of the Limitation Act would apply to the facts and circumstances of the present case. 17. Counsel appearing for the appellant, however, submitted before us that the aforesaid contentions on the face of it cannot be accepted as a correct position in law for by enacting sub-Section (4) in Section 46, the legislature thought it fit not to impose any restriction or time limit so far as limitation is concerned and therefore to hold that Article 137 of the Limitation Act would apply to such provisions is nothing but misreading of the provisions for if that was the intention of the legislature it would have so stated specifically by making the said provision applicable to a case like this. 18. The counsel therefore, submitted that such power of initiation of suo motu revision proceedings by the Commissioner or Joint Commissioner as the case may be should be held to be without any time or such restriction or at least it should be held that such exercise of power of revision could be exercised suo motu within a reasonable time depending on the facts and circumstances of each case. 19. Another submission which is advanced by the counsel appearing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered while passing the revised assessment orders pertaining to the above cases which were to be considered as per directions of the appellate court, hence the related revised assessment orders are not in conformity neither the directions of the appellate court and the provisions of law. In the light of the above facts the legality amp; propriety of the revised assessment orders has not been established and hence the revision of the said orders have been considered necessary. You are hereby directed to be present before the undersigned on 15.5.2007 and place your side as to why the above stated revised orders should not be set aside? Joint Commissioner of Commercial Taxes (Adm.) Dhanbad Division, Dhanbad quot; 24. Such orders are also existing against similar notices in the connected matters. 25. Relying on the aforesaid two documents, the counsel for the respondent submitted before us that it is apparent on the face of the record that the Joint Commissioner of Commercial Taxes initiated the suo motu action on the basis of the letter of the Deputy Commissioner, Commercial Taxes who had stated that the revision should be filed under Section 46(4) of the BFT Act, 1981 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was directed to be present before the Joint Commissioner and place his side as to why the above revised assessment order should not be set aside. 28. The respondent being aggrieved by the issuance of the aforesaid order filed a writ petition before the High Court. The High Court, however, did not grant any stay of the aforesaid notice and permitted the respondent to contest the said notice in accordance with law during the course of which the Joint Commissioner of Commercial Taxes has set aside the revised orders and sent back the matter for fresh assessment to the assessing officer. 29. The aforesaid subsequent development which had taken place during the pendency of the writ petition in the High Court has not been addressed to and decided by the High Court as the High Court has disposed of the entire writ petition on two issues namely on the issue of the ambit and scope of Section 46(4) of the BFT Act, 1981 and also on the ground of limitation. 30. The Deputy Commissioner, Commercial Taxes Division has pointed out in his communication to the Joint Commissioner several loopholes in the revised assessment orders passed by the assessing officer. The Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation is prescribed for filing a revision application by an aggrieved party for initiation of the revisional jurisdiction of the Commissioner which period is 90 days, as is stood at that relevant time. 35. The High Court has held that there cannot be an unlimited period of limitation even for exercising of suo motu revisional power for initiation of a proceeding by the Commissioner or the Joint Commissioner as the case may be and therefore provision of Article 137 of the Limitation Act was read into the Act laying down that at least within a period of three years from the date of accrual of the cause of action such a power of suo motu Revision should be exercised by the Joint Commissioner. 36. We are again unable to accept the aforesaid contention as the legislature has not stated in the provision at all regarding the applicability of Article 137 of the Limitation Act to Section 46(4) of the BFT Act. If the legislature intended to provide for any period of limitation or intended to apply the said provision of Article 137 into Section 46(4), the legislature would have specifically said so in the Act itself. When the language of the legislature is clear and unambiguous, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be reasonable period, would depend upon the facts of each case..... 43. In State of Punjab amp; Ors. v. Bhatinda District Cooperative Milk Producers Union Ltd. reported in (2007) 11 SCC 363 18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. 44. Now, the question that arises for our consideration is whether the power to exercise Suo motu revisional jurisdiction by the Joint Commissioner in the present cases was exercised within a reasonable period. On perusal of the records, we find that such powers have been exercised within about three years of time in some cases and in some cases soon after the expiry of three years period. Such period during which power was exercised by the Joint Commissioner cannot be said to be unreasonable by any stretch of imagination in the facts of the present case. Three years period cannot be said to be a very long period and therefore, in all these cases, we hold that the power was exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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