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TMI Blog2000 (6) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... : "Powers of revision of the Deputy Commissioner suo motu.-(1) The Deputy Commissioner may, of his own motion, call for and examine any order passed or proceedings recorded under this Act by any officer or authority subordinate to him other than an Appellate Assistant Commissioner and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit." Section 35 of the Act after the amendment is as follows: "35. Powers of revision of the Deputy Commissioner suo motu.-(1) The Deputy Commissioner may, of his own motion, call for and examine any order passed or proceedings recorded under this Act by any officer or authority subordinate to him other than an Appellate Assistant Commissioner which in his opinion is prejudicial to revenue and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit." The assessee invoked the jurisdiction of the Deputy Commissioner under section 35 of the Act by filing an application on June 24, 1993. The Deputy Commissioner by order dated August 19, 1993 declined jurisdiction to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendment, if an order is not prejudicial to the Revenue, section 35 of the Act cannot be invoked. Prior to the amendment, even the assessee can bring to the notice of the Deputy Commissioner the illegality of the order passed by the assessing officer. The only thing is that he should bring to the notice of the Deputy Commissioner within four years from the date of the order of assessment. Thus, the question that arises for consideration is whether the amendment takes away the right, which the assessee had, to approach the Deputy Commissioner in revision with regard to orders passed prior to the amendment. 5.. There is no dispute that the amendment effected under section 35 of the Act is not retrospective in operation. The contention urged by the learned counsel for the Revenue is that the right of revision is only a procedural right and so far as the procedural rights are concerned, no person has vested right and hence, any amendment to the procedure will be applicable to pending proceedings also. On the other hand, learned counsel for the assessee contended that the right of revision is not a mere procedural right. It is a right conferred on the assessee by the statute. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner to remedy injustice. The power is couched in very wide terms. The purpose for which the power of such amplitude is given is to safeguard the interest of the Revenue and also that of the assessee. It is open to the assessee or to the Revenue to bring it to the notice of the authority (Deputy Commissioner) any error made by a subordinate authority and it is for the Deputy Commissioner to consider whether the case is a fit one, in exercise of the revisional jurisdiction. Since the power of revision can be exercised to set right the error or illegality of a subordinate authority and it could be exercised for or against the assessee, such power can be exercised, even if the assessee has not filed an appeal against the order, for the purpose of setting right the improper or the illegal order .......... When circumstances warranting the exercise of the power come to the notice of the concerned authority, the mere fact that the circumstances for the exercise of that power are shown to exist, by the assessee in a particular case, cannot be a factor or reason for the non-exercise or refusal to exercise the said power." Thus, this Court held that the assessee was having a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Kerala [1988] 69 STC 21 (Ker), a division Bench had occasion to consider a similar question. The occasion to consider that question arose when section 35(2A) of the Act was introduced by an amendment. As per section 35(2A) of the Act, the Deputy Commissioner is given power to decide any point which has not been decided in appeal or revision within one year of order in appeal or four years from the date of assessment order. The facts of that case are as follows: For the three years, 1972-73, 1973-74 and 1974-75, assessment orders were passed against the assessee. The assessee had filed appeals before the Deputy Commissioner of Sales Tax (Appeals). For the first two years, the appeals were disposed of on May 10, 1978 and for the year 1974-75, the appeal was disposed of on April 26, 1978. The Deputy Commissioner of Sales Tax, Ernakulam, took the view that the assessee is not entitled to the benefit of the concession contemplated by Notification, S.R.O. No. 116 of 1966, and initiated suo motu revision proceedings under section 35(2A) of the Act by issuing notice dated November 6, 1979. By order dated January 30, 1980, the Deputy Commissioner of Agricultural Income-tax and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 (SC) and distinguished the decision of the same High Court in K. Ganesh v. State of Tamil Nadu [1988] 68 STC 84 (Mad.). In State of Andhra Pradesh v. Kothuri Venkateswarlu and Sons [1992] 85 STC 334, a division Bench of the Andhra Pradesh High Court considered the amendment to section 20(1) of the Andhra Pradesh General Sales Tax Act, by which the power of revision was restricted to cases where the orders were prejudicial to the interests of the Revenue. The division Bench held that in taxation matters the statutory right of appeal or revision are also vested rights and is to be determined from the law as it was when the order of assessment was passed. In Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114, the Supreme Court was considering the question regarding the right of appeal. There, the Supreme Court has considered whether the amendment was merely an amendment. Under section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 as it stood prior to its amendment, the assessee is entitled to appeal provided he paid such amount of tax as he might admit to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Sree Ganesh Wood Works v. Sales Tax Officer (1996) 4 KTR 253, held as follows: "It is not in dispute that at the time when the revisions were filed, the second respondent, viz., the revisional authority was vested with the power to take suo motu revision to revise the orders of the assessing authority and that the petitioner only invoked such a power which existed at the time when he filed the revision petitions in view of the notification, exhibit P5. In my view the second respondent was not justified in rejecting the revisions on the ground that there was a subsequent amendment which took away the power of the revisional authority to pass any order prejudicial to the Revenue. A reading of the exhibit P5 notification, would show that the Government considered all these aspects and then issued the said notification giving retrospective effect to the said notification by granting exemption to the softwood with effect from April 1, 1984. I am of the view that the revisional authority was not justified in rejecting the revisions filed by the petitioner and hence the order, exhibit P11, passed by the revisional authority has to be quashed and accordingly it is quashed." Viswana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act. Hence, it is not applicable to the facts of this case. 12.. Thus, on a conspectus of the various decisions and the authorities on the subject, we are of the view that the right of revision conferred under section 35 of the Act cannot be said to be a mere procedural right. A party, who has not filed an appeal, has got a right to approach the revisional authority under section 35 of the Act. It was an alternate remedy to the assessee. By the decision of this Court, the assessee could file revision before the Deputy Commissioner under section 35 of the Act to look into the complaint filed and find out whether injustice has been caused to the assessee. This, according to us, is a right that is vested in the assessee at the time when the assessment orders were passed. Now by the amendment, this right has been taken away and now the power under section 35 of the Act is available only with regard to those matters, which are prejudicial to the Revenue. This, according to us, affects substantive right of the assessee. 13.. In the aforesaid view of the matter, the tax revision cases are dismissed. The Deputy Commissioner is directed to consider and dispose of the revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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