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TMI Blog1998 (8) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the Commissioner has jurisdiction to suo motu revise an order passed by the Additional Commissioner. This question has been adjudicated about a decade back by a division Bench of this Court in Orient Paper Mills v. State of Orissa [1988] 70 STC 333. It was held that the Commissioner has no power to revise the order passed by the Additional Commissioner or the Special Additional Commissioner as the case may be. This view has been reiterated in several other cases, one of them being O.J.C. No. 3562 of 1986 disposed of on November 6, 1991. In Food Corporation of India v. Sales Tax Officer [1990] 78 STC 58 (Orissa), the assessee-concern had challenged the view of the Commissioner, who held that he has no jurisdiction to revise the order passed by the Additional Commissioner. The learned counsel for the Revenue relied on the decision in Orient Paper Mills case [1988] 70 STC 333 (Orissa) in that case to support the view of the Commissioner. Following the decision in Orient Paper Mills case [1988] 70 STC 333 (Orissa), it was held that the Commissioner has no jurisdiction to revise the order passed by the Additional Commissioner. Therefore, it is clear that for about a decade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 23(4)(a) has been delegated. The notification reads as follows: Office of the Commissioner of Commercial Taxes, Orissa. Order Dated, Cuttack, the 18th May, 1963. No. 12358-CT. In exercise of the powers conferred by section 17 read with clause (d) of sub-section (4) of section 23 of the Orissa Sales Tax Act, 1947, (Orissa Act 14 of 1947), I, S.M.H. Burney, I.A.S., Commissioner of Sales Tax, Orissa, with the prior approval of the State Government do hereby delegate the powers exercisable by me under clause (a) of sub-section (4) of section 23 of the said Act and rule 79 of the Orissa Sales Tax Rules, 1947, to the Additional Commissioner of Sales Tax and direct that the powers and duties under the said provisions shall be exercised and discharged by him. Sd. S.M.H. Burney, Commissioner of Sales Tax, Orissa. It is to be noted that rule 79 deals with application to the Commissioner for revision. Undisputedly the power of revision available to the Commissioner under section 23(4)(a) read with rule 79 has been delegated. Commissioner by the impugned notices purported to exercise power under rule 80. The question is whether he can do it after the revisional order is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The second aspect does not also present any difficulty. As would appear from section 29(2)(s)(ii), framing of rules is permissible according to law to lay down the procedure for appeals and revisions. In the guise of framing rules substantive law giving a fresh quasi-judicial power of revision unconnected with procedure could not be introduced to the Rules. Rule 80 is a substantive quasi-judicial power given to the Commissioner to be exercised in general on his own motion to correct errors prejudicial to the interest of the Revenue. Such a general, substantive and all pervasive quasi-judicial function could be contemplated in the statute but not under the Rules framed thereunder, particularly when the rule-making power does not authorise for framing of such a rule. Rule 80 is, therefore, an excessive delegation of substantive quasi-judicial power in favour of the Commissioner which ex facie seems unsupportable. But this Court exercising its power as a court of appeal under section 23(4)(c)(i) cannot quash rule 80 being itself a creature of the statute. This rule could only be quashed in an appropriate proceeding under article 226 of the Constitution. 6.. At this juncture it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner in respect of any order against which the applicant has a right of appeal under sub-section (1) or sub-section (3) of section 23: Provided further that the Commissioner may admit an application for revision received after the said period if it is shown to his satisfaction that the appellant had reasonable cause for not preferring the application in time. Rule 80: Revision by the Commissioner suo motu.-The Commissioner may on his own motion at any time within three years from the date of passing of any order by the Sales Tax Officer or within two years from the date of passing of any order by the Additional Commissioner, Special Additional Commissioner or Assistant Commissioner, as the case may be, call for records of the proceedings in which such order was passed and if he considers that any order passed therein is erroneous in so far as it is prejudicial to the interest of the revenue he may after giving the dealer an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary revise any such order: Provided that the Commissioner shall not revise any order under this rule- (1) Where an appeal against the order is pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. In Collins Cobuild English Dictionary the word delegate has been stated to be a person who is chosen to vote or make decisions on behalf of a group of other people. If you delegate duties, responsibilities, or power to some one, you give them those duties, those responsibilities, or that power so that they can act on your behalf. If you are delegated to do something you are given the duty of acting on some one else s behalf by making decisions, voting, or doing some particular work. In Black s Law Dictionary, 6th Edition, the word delegate has been stated to mean a person who is appointed, authorised, delegated or commissioned to act in the stead of another. Transfer of authority from one to another. A person to whom affairs are committed by another. Delegation according to said dictionary means, the instructing another with a general power to act for the good of those who depute him; transfer of authority by one person to another. According to Venkataramaiya s Law Lexicon, delegation as the word generally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. 11.. From notification dated May 18, 1963 referred to above it is quite clear that with regard to exercise of power of revision under section 23(4)(a), the Commissioner delegated his function to the Additional Commissioner, and in exercise of such power the latter disposed of the matter by the order which is now sought to be revised. The scheme of section 23 in fact does not provide for a second revision. Section 23(4)(cc) attaches finality to the first order passed in revision as indicated above. It has been submitted that the power delegated was sought to be exercised, because the delegator does not denude his original power. This submission has no force because the Commissioner has not initiated the proceeding for hearing the matter afresh in terms of power conferred under rule 79. The Commissioner could not have done this after disposal of the matter finally by the delegated authority, and the order has assumed finality. Even if the Commissioner would have initiated the proceeding for hearing the matter afresh, it would have amounted to an attempt to review of his own order because the delegated authority had exercised power of revision by the delegator, i.e., the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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