9911796707
TMI Blog1999 (2) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the four quarters ending on August 31, 1986 the Commercial Tax Officer, Central Section (Assessment Wing) rejected the firm's books of accounts and by an order dated December 24, 1990 raised an additional demand of Rs. 8,51,937 including a penalty of Rs. 50,000, over and above the admitted tax as shown in the return. Notices of demand in forms VII and VIIL were served on the firm on February 9, 1991. Against such assessment the firm preferred on April 8, 1991, before the Assistant Commissioner of Commercial Taxes, Central Section (Assessment Wing), two appeals-one against the assessment of tax and penalty and the other against the imposition of interest. But during the pendency of these appeals the assessing authority, in purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 1 (the assessing authority) suo motu revising his own assessment was set aside by the Assistant Commissioner on the settled principle of law that during the pendency before a superior authority an appeal against an order of a subordinate authority, the latter (i.e., such subordinate authority) shall not make any change in the order appealed against, to render the appeal infructuous. The firm therefore contends that the Additional Commissioner cannot legally be competent to make attempt to revive a patently illegal suo motu order of the assessing authority which has already been set aside competently by the Assistant Commissioner on established legal principle. It is further added by the firm that the notice of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned notice dated November 19, 1997. 4.. Mr. L.K. Gupta, learned Advocate for the applicant, at the first instance questions the validity of the notices issued by the Additional Commissioner on the ground that these notices do not disclose any reason for which the said authority considered it necessary to reopen the original assessment. But, if the Additional Commissioner gives the assessee an opportunity of being heard on all the grounds on which he (the Additional Commissioner) considered it necessary to reopen the assessment, there can be no denial of justice. The ratio of the decision of the Supreme Court in the case of Sales Tax Officer, Ganjam v. Uttareswari Rice Mills [1972] 30 STC 567 provides the appropriate guideline in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order involved mere corrective mathematical calculations on the existing materials of the already concluded assessment or involved new materials. Be that as it may, since the law permits review of one's own order under section 20(4), we, in the absence of the copy of the order, can take it to be an order of the assessing authority by way of such review. 6.. Now the question is if such review by the Commercial Tax Officer of his own assessment order is permissible during the pendency of appeal against such order. In our opinion, the principle, as applicable to a situation where an order is revised suo motu by an authority during the pendency of an appeal against such order, will apply in case of review also. Mr. Gupta has q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed it will directly interfere with the appellate authority s jurisdiction and will at times render the appeal infructuous due to change of nature and character of the order by way of such revision. Such outcome will not only lead to confusion but will also create anarchy in the justice dispensation process envisaged in the 1941 Act. The same principle applies with greater force in the matter of review of his own order by a subordinate authority when an appeal against the same order is already pending before a superior authority. Therefore, such review is not permissible. In this context, the decision of the Supreme Court reported in [1981] 48 STC 248 (Tel Utpadak Kendra v. Deputy Commissioner of Sales Tax) will be of relevance. 7.. The qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents, that the Additional Commissioner has the unrestricted jurisdiction to revise under section 20 of the 1941 Act any order of his subordinate, and that the order of the Assistant Commissioner setting aside the order of the Commercial Tax Officer (modifying his own assessment) being also an order within the meaning of section 20, there can be no legal prohibition for him (the Additional Commissioner) to revise the said order of the Commercial Tax Officer. In support of his contention he refers to the decision of the Supreme Court reported in [1997] 107 STC 579 (Commissioner of Sales Tax, Orissa v. Halari Store). The said decision is in the context of section 23(4)(a) of the Orissa Sales Tax Act, 1947. In the said case the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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