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TMI Blog1998 (6) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1957 (for short, "the Act") before the Appellate Deputy Commissioner, Warangal, on the ground that the relevant G.Os., i.e., G.O. Ms. No. 224 dated March 9, 1976, G.O. Ms. No. 201 dated December 7, 1976 and G.O. Ms. No. 106 dated March 8, 1976, were not considered by the assessing authority and, as such, it is not liable to pay 2 per cent tax on the purchase value of the paddy. The learned Appellate Deputy Commissioner after considering all the relevant G.Os., and placing reliance on the earlier order passed by the Commissioner of Commercial Taxes in the case of M/s. Balaji Boiled Rice Mill, Sudimall, Warangal district dated May 10, 1991 observed that no tax is payable by the assessee on the purchase turnover of paddy and remanded the matter to the assessing authority for consideration and passing orders afresh. Consequent upon the direction given by the Appellate Deputy Commissioner in the appeal, the assessing authority passed orders giving effect to the appellate order exempting the turnover relating to purchase of paddy. and the tax paid by the assessee pursuant to the original assessment was refunded. However, the Commissioner of Commercial Taxes by virtue of the revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the learned counsel, as provided under section 20(3) of the Act, the orders of the subordinate authorities could be revised by the higher authorities; but such revision should be completed within a period of four years from the date of passing of the assessment order by the lower authority. According to the learned counsel, the assessing authority passed the assessment order for the assessment year 1989-90 on March 28, 1991 and the Appellate Deputy Commissioner of Commercial Taxes on appeal passed an order on April 10, 1992. When the order passed by the Appellate Deputy Commissioner dated April 10, 1992, which was served on the assessee on the same day, is sought to be revised as per section 20 of the Act, the period of limitation is only four years, that is to say, the order on revision by the higher authority shall be passed on or before April 10, 1996 and a copy of such order shall also be served on the assessee on or before the said date. According to the learned counsel, the order of the Appellate Deputy Commissioner is dated April 10, 1992, which was served on the assessee on the same day, and the impugned order of the Commissioner of Commercial Taxes is dated April 8, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... internal correspondence of various authorities, the assessee has tried to build the case finding few words here and there and contended that the Additional Commissioner of Commercial Taxes has not exercised powers under section 20(2) of the Act and has not dropped the proceedings and the present attempt on the part of the assessee is not justifiable inasmuch as the letter only discloses the forwarding of the files. The learned Special Government Pleader also drawn our attention to para 3 at page 4 of the impugned order and contended that the finding of fact recorded by the Commissioner of Commercial Taxes in para 3 at page 4 of the impugned order fairly discloses that there was no order passed by the Additional Commissioner of Commercial Taxes as alleged by the counsel for the assessee. The learned Special Government Pleader while meeting the submissions of the learned counsel for the assessee on the question of limitation contended that as provided under section 20(3) of the Act the Commissioner of Commercial Taxes has to exercise his powers, if in his opinion that the order passed by the lower authority is prejudicial to the interest of the department, and pass orders within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r erroneously directed the assessing authority through proceedings dated April 10, 1992 to grant the benefit of tax to the assessee as was given to M/s. Balaji Boiled Rice Mill, Sudimall, Khammam district. The learned Special Government Pleader contended that when the Commissioner of Commercial Taxes came to know about the anomalies, as pointed out by the audit party in the report, exercised powers under section 20(1) of the Act, while issuing a show cause notice calling for explanation and provided an opportunity of hearing to assessee, and passed the impugned order according to law. The learned Special Government Pleader contended that as the order of the Appellate Deputy Commissioner is prejudicial to the interest of the Revenue, the Commissioner of Commercial Taxes, who is competent to exercise his revisional jurisdiction, passed the order in question. 7.. We have beard both the counsel at length and given our anxious consideration to the various contentions raised by both the counsel. In the light of the respective contentions advanced by both the counsel, it has to be examined whether the order passed by the Commissioner of Commercial Taxes on April 8, 1996 is a second re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lower authority passed the order rightly and no prejudice is caused to the revenue and no revision is needed in the said case. This is a matter of procedure and a matter of record. Having perused the record placed before us, we have not come across such a finding by the Additional Commissioner in the record nor there is any order to that effect found in the file placed before us holding that the order passed by the Appellate Deputy Commissioner is proper and is in accordance with law and needs no revision. In this context it is relevant to refer to the observation made by the Commissioner of Commercial Taxes, while passing the impugned order, which is at para 3 of page 4, which reads as follows: "The authorised representative has also stated that the Additional Commissioner has reviewed the ADC's orders and accepted it. I do not find any such proceedings to that effect in the file........." Thus, it is clear that there was no order passed by the Additional Commissioner of Commercial Taxes as contended by the learned counsel for the assessee. We are, therefore, of the view that there is no order passed earlier by the Additional Commissioner of Commercial Taxes and there is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995] 96 STC 664, a Division Bench of this Court was also examining the implications under section 20(3) of the Act. While following the decision of the Supreme Court in Ramakishtaiah Co.'s case [1994] 93 STC 406 the Division Bench made a passing observation saying that all proceedings, including service of order on the affected party, shall be completed within the limitation period of four years provided for completing such an enquiry under section 20(3) of the Act. Emphasis was laid by the learned counsel on the observation made by the Division Bench in the said case. We are afraid that this observation may not lend any assistance to the assessee. As discussed above, in Ramakishtaiah Co.'s case [1994] 93 STC 406, the Supreme Court while dealing with the provisions of section 20(3) of the Act had clarified the position and set aside the order only on the ground that there was abnormal delay of 10 months in serving the order on the assessee and observed that in, the absence of any proper explanation for such delay in serving the copy, the court must presume that the order was not made on the date it purported to have been made and that it could have been made after expiry of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it cannot be held that the order of revision passed by the Commissioner would get vitiated. Therefore, we reject the second submission made by the learned counsel for the assessee with regard to the limitation. 12.. Coming to the last limb of submission made on behalf of the assessee that by the order passed by the Appellate Deputy Commissioner, Warangal, dated April 10, 1992 no prejudice is caused to the revenue requiring exercise of revisional power by the Commissioner of Commercial Taxes under section 20 of the Act, we are afraid this submission cannot be accepted. Though the learned counsel for the assessee cited the decision of a Division Bench of this Court in State of Andhra Pradesh v. Business Forms Limited [1994] 94 STC 23; [1994] 19 APSTJ 22, in support of his above contention, the facts in the said decision are not akin to the facts of the present case. The revisional powers are to be exercised by the higher authority on the order passed by the lower authority if, in the opinion of the higher authority, the order passed by the lower authority is prejudicial to the interest of the revenue. In this case, no doubt, the order passed by the Appellate Deputy Commissione ..... 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