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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 ..... PEAL ARISING OUT OF SLP (C) NO. 19104 OF 2008 4. The facts leading to the filing of the case in the appeal arising out of SLP (C) No. 19104 of 2008 are that the respondent-M/s Shivam Coke Industries, Dhanbad is a manufacturer of coal and was registered under the provisions of the Bihar Finance Act, 1981 [now repealed - for short "BFT Act, 1981"] and presently under the provisions of Jharkhand Value Added Tax, 2005. Respondent-assessee being manufacturers of hard coke buys coal from Bharat Coking Coal Ltd. after making the payment of local Sales Tax @ 4% which is being used as an input for the purpose of manufacturing the hard coke. Respondent was assessed to tax for the Financial Years 1988-89, 1992-93 and 1996-97 determining the tax on intra-State sales transactions as well as Central Sales Tax on inter-State sales transactions. Respondent preferred an Appeal before the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad Division, Dhanbad against the assessment orders passed between 26.4.1990 to 23.12.1998 for the Financial Years 1988-89, 1992-93 and 1996-97, who vide order dated 25.08.2003 remanded the aforesaid assessment proceedings by a common order to re-examine the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Commercial Taxes by which he set aside the revised assessment order dated 26.12.2003. The High Court of Jharkhand vide its order dated 14.03.2008 allowed the Writ Petitions of the respondent herein against which the appellants have filed the present appeals on which we heard the learned counsel appearing for the parties. CIVIL APPEALS ARISING OUT OF SLP (C) NOS. 19105-06 OF 2008 5. The facts leading to the filing of appeals arising out of SLP (C) Nos. 19105-06 of 2008 are that the Respondent -M/s. Rani Sati Coke Manufacturing Company, Baliyapur, Dhanbad is engaged in processing of coal to coke and was assessed to tax for the Financial Years from 1984-85 to 2000-2001 determining the tax on "intra-State sales" transactions, as well as Central Sales Tax on inter-State sales transactions. Respondent filed an appeal against the assessment orders passed between 29.12.1987 to 10.3.2003 for the Financial Years from 1984-85 to 2000-01 and the appellate authority, i.e., the Joint Commissioner of Commercial Taxes (Appeal), Dhanbad Division, Dhanbad remanded the aforesaid assessment proceedings by a common order to re-examine the nature of intra-State sales and inter-State sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed the present appeals on which we heard the learned counsel appearing for the parties. CIVIL APPEALS ARISING OUT OF SLP (C) NO. 21491 AND 8424 OF 2008 6. The appeals arising out of SLP(C) No. 21491 of 2008 are against the judgment and order of the High Court of Jharkhand dated 19.03.2008 following the judgment in WP (T) NO. 6377 of 2007. The facts of this appeal and also of the appeal arising out of SLP (C) No. 8424 of 2010 are similar to the other appeals at hand. So, we need not go into the detailed facts of the said two appeals. 7. The learned counsel appearing for the appellant while taking us to the impugned judgment and also the connected records submitted that judgment and order passed by the High Court is incorrect. He further submitted that the findings arrived at by the High Court are erroneous and based on wrong readings of the materials available on record. 8. The learned counsel appearing for the respondents on the other hand while drawing support from the impugned judgment and order submitted that the findings recorded by the High Court are findings of fact and therefore this Court should not interfere with the aforesaid conclusions of fact arrived at by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery application for revision under this section shall be filed within ninety days of the communication of the order which is sought to be revised, but where the authority to whom the application lies is satisfied that the applicant had sufficient cause for not applying within time, it may condone the delay. (4) The Commissioner may, on his own motion call for an 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 propriety 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. (5) No order under this section shall be passed without giving the appellant as also the authority whose order is sought to be revised or their representative, a reasonable opportunity of being heard. (6) Any revision against an appellate order filed and pending before the Joint Commissioner or a revision against any other order filed and pending before the Deputy Commissioner since before the enforcement of this part shall be deemed to have been filed and/or transferred resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his rank which is so delegated in terms of the notification issued by the State of Bihar under S.O. No. 795 dated 28th June 1986. 14. It is thus established that under Section 46 of the BFT Act, 1981, it is the Commissioner who on the basis of an application filed by an aggrieved party revise the order passed by any authority subordinate to him. He also has the additional power alongwith the Joint Commissioner as a delegatee as provided under Section 46(4) of the BFT Act, 1981 to revise an order passed by an authority subordinate to it by exercising its suo motu power. 15. In all these appeals, the Joint Commissioner of Commercial Taxes has exercised the power vested on him under Section 46(4) of the BFT Act, 1981 which power in most cases concerning the present appeals was exercised by him within a period of three years but in some other cases beyond the expiry of three years period, but soon thereafter. 16. In that view of the matter, counsel appearing for the respondent submitted in the High Court that exercise of such power by the Joint Commissioner after expiry of more than two years time is illegal, without jurisdiction and bad in law. The Division Bench of the Jharkhand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and illegalities by his predecessor in his order, but, it was a power which was exercised by the Joint Commissioner independently on his own accord and therefore, it cannot be said that the aforesaid power was exercised illegally or without jurisdiction. 21. We may therefore, refer to the materials on record so as to record our findings on the aforesaid issue. 22. In all these appeals, there are letters which were written by the Deputy Commissioner of Commercial Taxes to the Joint Commissioner (Administration). One of such letter is dated 28.8.2007. In the said letter it is stated by the Deputy Commissioner that the said communication is regarding filing of suo motu revision under Section 46(4) of the BFT Act, 1981. The aforesaid letter by the Deputy Commissioner, Commercial Taxes was written to the Joint Commissioner (Administration). In the said letter, the Deputy Commissioner has pointed out some alleged mistakes in the original tax assessment order and the revised order. He also stated in that communication that he is unable to agree with the revised tax assessment order and reimbursement order passed by the Divisional Incharge and therefore, according to his opinion a revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are, however, unable to accept the aforesaid contentions for the simple reason that a bare perusal of the notice issued on 17.12.2007, the contents of which have been extracted hereinbefore would indicate that the aforesaid notice was issued by the Joint Commissioner by exercising his individual suo motu power as provided under Section 46(4). It is not a case where such notice was issued on the basis of an application filed by the Deputy Commissioner. This is obvious because in the said notice, there is absolutely no reference made of the application sent by the Deputy Commissioner. If from the available records of a particular case, the Joint Commissioner forms an independent opinion that the same is a case where suo motu power of Revision should be exercised, he is empowered to so exercise such suo motu power of revising an order which appears to be illegal and without jurisdiction to the competent authority who is empowered to issue such notice by recording his reasons for coming to such a conclusion in the notice itself. 27. In the present case, the Joint Commissioner has exercised his own independent mind for issuing the notice and also recorded his own reasons for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and personal satisfaction that the legality and propriety of the revised assessment orders has not been established because of the reasons specifically stated in the said notice and therefore he has thought it fit to exercise his power of suo motu revision consequent upon which the aforesaid notice was issued. 32. There is no reference in the said notice to the letter and any other materials contained with the letter of the Deputy Commissioner anywhere in the notice and therefore, it cannot be said that while coming to the aforesaid conclusion in the impugned notice, the Commissioner was influenced only by the opinion of the Deputy Commissioner. On consideration of the records we are satisfied that it was not a revision initiated on the basis of any application filed by an aggrieved party namely the Deputy Commissioner but initiation of a Revisional proceeding by the Joint Commissioner by forming his own opinion and satisfaction to exercise suo motu power vested under Section 46(4) of the BFT Act on the basis of the materials on record. The aforesaid contention is therefore, rejected. Issue 2 - Whether or not the action taken by the Department was barred by limitation 33. The ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Article 137 of the Limitation Act would be applicable to the facts and circumstances of the present case. 39. We would, however, agree with the position that such a power cannot be exercised by the revisional authority indefinitely. In our considered opinion, such extra ordinary power i.e. suo motu power of initiation of revisional proceeding has to be exercised within a reasonable period of time and what is a reasonable period of time would depend on the facts and circumstances of each case. 40. For this proposition, a number of decisions of this Court can be referred to on which reliance was placed even by the counsel appearing for the respondent. 41. In Sulochana Chandrakant Galande Vs. Pune Municipal Transport and Others reported in (2010) 8 SCC 467, this Court dealing with the issue of "reasonable time" held as follows:- 29. In view of the above, we reach the inescapable conclusion that the revisional powers cannot be used arbitrarily at a belated stage for the reason that the order passed in revision under Section 34 of the 1976 Act, is a judicial order. What should be reasonable time, would depend upon the facts and circumstances of each case. 42. In Govt. of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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