9911796707
TMI Blog1996 (2) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Assistant Commissioner, Sales Tax passed in appeal is dated May 3, 1994. Parties in both the cases being common and the point involved being the same, they were heard together and are disposed of by this judgment. 2.. Petitioner M/s. Halari Store is a registered dealer under the Act. It carries on wholesale business in purchase and sale of betel-nuts at Malgodown, Cuttack. In response to notices issued under section 12(4) of the Act, the petitioner appeared before the concerned Sales Tax Officer and produced the books of accounts for the relevant years for verification. According to the petitioner, the Sales Tax Officer without properly examining the purchase and sale accounts, purchase invoices and sales memos rejected the books of accounts illegally and completed the assessment to the best of his judgment. Aggrieved by the assessment orders, the petitioner filed appeals before the first appellate authority, i.e., the Assistant Commissioner of Sales Tax, Cuttack I Range, Cuttack under section 23(1) of the Act. The said appellate authority by making elaborate discussion in the orders referred to above allowed the appeal in part for the year 1992-93 and in full f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has disposed of the appeals and those appellate orders could have been challenged by the Revenue by filing second appeals as provided in section 23(3) of the Act and without taking recourse to the same, the Additional Commissioner of Sales Tax is not competent to invoke suo motu jurisdiction under section 23(4) of the Act by issuing the impugned notices and set at naught the orders of the first appellate authority which have otherwise become final. 5.. Counter-affidavit has been filed on behalf of the opposite parties contending, inter alia, that under the scheme of the Act no right accrues to any person until proceeding attains finality and the exercise of statutory power of suo motu revision was necessitated as the appellate orders of the Assistant Commissioner of Sales Tax were erroneous and prejudicial to the interest of the Revenue. 6.. To appreciate the contention involved in the matter, it is necessary to read section 23 of the Act and the Rules framed thereunder. Section 23 deals with appeals and revisions. Sub-section (1) thereof provides, inter alia, that any dealer or person may appeal to the prescribed authority against an order of assessment under section 12, 12-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal" and "revision" are found mentioned in section 23, it would be reasonable to assume that the well-known distinction between the appellate and the revisional jurisdiction was also accepted by the Legislature. An appeal being a continuation of the proceedings, the entire proceedings are before the appellate authority who is competent to dispose of the appeal subject to the statutory limitation, if any, prescribed. As we find, the appellate authorities, viz., the first appellate authority as well as the second appellate authority may confirm, reduce, enhance or annul the assessment or the penalty or interest or set aside the assessment or the penalty or interest and direct the assessing authority to pass a fresh order after such other enquiry as may be directed. The aforesaid being the position, the question that arises for our consideration is whether the Commissioner in exercise of revisional power, be it at the instance of the Revenue or suo motu can revise an order passed by the first appellate authority under sub-section (2) of section 23 of the Act. At this stage, we may consider the position of rule 80 which deals with the suo motu revisional jurisdiction of the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the first appellate authority passed under section 23(2), the aggrieved party cannot by-pass the appellate forum and follow a short-circuit by invoking the revisional jurisdiction of the Commissioner. We state that the expression "any order" in sub-section (4)(a) of section 23 and rule 80 does not mean an appellate order made under sub-section (2) of section 23. Any other construction would run contrary to the scheme of section 23 and such construction should be avoided. It is well-known that the provision should be considered to ensure consistency within the law as a whole and to avoid undesirable consequences. The Commissioner in exercise of revisional jurisdiction under sub-section (4)(a) of section 23 and under rule 80 cannot revise an appellate order made by the appellate authority under sub-section (2) of section 23 is apparent from the restrictions contained in the proviso to subsection (4)(a) as well as the proviso contained in rule 80. The proviso to subsection (4)(a) of section 23 states that the Commissioner shall not entertain any such application for revision if the dealer or the person filing such revision having remedy by way of appeal under sub-section (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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