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TMI Blog1995 (9) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... t and dispose of the same in accordance with law". Pursuant to that direction of this Court, the Commissioner entertained the said revision petition and made the present impugned order dated February 20, 1989 disallowing the claims of the appellant herein on merits and dismissing the revision petition. The learned Government Pleader for Commercial Taxes contends that the said order of the Commissioner is without jurisdiction in view of the recent decision of the Supreme Court in State of Andhra Pradesh v. Lakshmaiah Setty Sons [1994] 94 STC 190 directly dealing with the scope and ambit of section 20 of the Act. In that case a two Judges Bench of the Supreme Court observed that the question whether the assessee had a right to make an application for the exercise of suo motu power by the Commissioner called for consideration in the light of the other provisions in the Act, expressly providing for a right of appeal to the assessee-sections 19 and 21. After referring to the decision of the Privy Council in Commissioner of Income-tax v. Tribune Trust [1948] 16 ITR 214; AIR 1948 PC 102; and the decisions of this Court dealing with the scope of section 20 of the Act in Kalluri Bheemal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. The Supreme Court rejected the contention advanced on behalf of the State that the assessee had no right to invoke the jurisdiction of the Board to exercise its revisional power observing as follows: "...........It was contended on behalf of the State that the assessee had no right to invoke the jurisdiction of the Board to exercise its revisional power. This contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under section 34, then in the absence of any vitiating circumstance recognised by law, the High Court would not have interfered with the discretion of the Board.......Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide." It is significant that thereafter the Supreme Court also o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was as follows: "20. Revision by Commissioner of Commercial Taxes and other prescribed authorities.-(1) The Commissioner of Commercial Taxes may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section, for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit." We have also to point out that earlier Division Bench took care to clarify that section 20 did not confer a right of revision upon the assessee. That Division Bench stated the position under the old sub-section (1) as follows: "In the absence of any words restricting the exercise of power at the instance of the assessee, we see no ground to hold that it is not open to an assessee to invoke the said power. This does not mean that this section confers a right of revision upon the assessee, nor does it mean that the Commissioner or other authority is bound to exercise the power, as and when it is invoked by an assessee. It is a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this Court directed the authority concerned to exercise suo motu revisional power when that authority refused to exercise that power on the merits of the case before him. From the above it is clear that even as per the decisions of the earlier Division Benches of this Court in State of Andhra Pradesh, In re: [1983] 54 STC 132 and Gill Co. [1987] 65 STC 232 the assessee had no vested right of revision under sub-section (1) of section 20 as it stood before it was amended by Act 18 of 1985. Therefore, we are of the view that, even apart from our conclusions based on the decision of the Supreme Court in Lakshmaiah Setty Sons [1994] 94 STC 190, inasmuch as the assessee had never any right to invoke the revisional power under section 20 of the Act, he cannot complain against the order of the Commissioner of Commercial Taxes refusing to exercise his suo motu powers of revision at the instance of the assessee in his favour-much more so after it was amended by Act 18 of 1985 restricting the exercise of revisional power of the Commissioner of Commercial Taxes to only orders or proceedings "prejudicial to the interests of revenue", as in the present case. We have also to observe that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. ...................... A question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. If by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. ............Where, however, the question is one purely of law and it relates to the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction." In view of these decisions, we see no merit in the contention advanced by the learned counsel for the appellant based on the principle of res judicata and on the principle of finality. We may also observe that the decision of the Division Bench of this Court in Special Appeal No. 53 of 1984 dated February 9, 1988 is per incuriam because it did not notice the amendment effected to sub-section (1) of section 20 by Act 18 of 1985. The Division Bench merely purported to follow the decision of the other Division Bench in Gill Co. [1987] 65 STC 232 (AP). The Division Bench held as follows: "The question raised by the learned counsel (appearing for the appellant) is squarely covered by the decision of a Division Bench of this Court in Gill Co. v. Commissioner of Commercial Taxes, Andhra Pradesh [1987] 65 STC 232. Following the same, we set aside the impugned order of the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad and direct him to entertain the revision petition preferred by the appellant and disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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