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TMI Blog2002 (7) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... tion do not show that the assessee had filed a reply to this notice. The assessee has approached this Court invoking the jurisdiction of this Court under article 226 of the Constitution of India challenging the legality and validity of the notice and also questioning the constitutional validity of rule 80 of the Orissa Sales Tax Rules. At the hearing, the constitutional validity of rule 80 of the Rules was not seriously pursued. But, the jurisdiction of the Commissioner of Commercial Taxes to issue such a notice was seriously questioned on the basis of a challenge to the legality of the notice in the circumstances of the case. 2.. The assessee is an existing company under the Companies Act, 1956 engaged in the business of manufacture of cement and refractory products and having its registered office and factory at Rajgangpur in the district of Sundargarh in this State. It is a registered dealer under the Orissa Sales Tax Act and also under the Central Sales Tax Act. The assessee, in the course of its business of manufacture and sale of cement, had opened a branch at Calcutta and according to it, had appointed a number of consignment agents in the States of West Bengal and Bihar. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the books of accounts, the records and other documents maintained by the assessee. By order dated February 16, 1989, the Assistant Commissioner of Sales Tax enhanced the turnover of the assessee by treating the so-called stock transfers as inter-State sales. An additional amount of tax was imposed on the assessee. The assessee challenged the decision of the Assistant Commissioner of Sales Tax before the Orissa Sales Tax Tribunal by way of a further appeal. That appeal was allowed by the Orissa Sales Tax Tribunal on October 6, 1990. The Tribunal set aside the order of the Assistant Commissioner of Sales Tax by reversing the finding that the branch transfers amounted to inter-State sales. The assessment proceeding was remanded to the Sales Tax Officer directing him to examine the issue in the light of the observations made by the Sales Tax Tribunal in its order. The Sales Tax Officer, thereafter passed a fresh order of assessment on March 31, 1995. The Sales Tax Officer accepted the plea of the assessee that the transactions were only stock transfers and were not inter-State sales. The assessing authority also ordered refund of certain amounts on the basis of that decision. The asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pending before the appellate authority under section 23, or (2) where time-limit for filing an appeal under section 23 has not expired." On a plain reading of the rule, it is clear that the Commissioner, on his own motion, within the time prescribed, can call for the records of the proceeding of any Additional Commissioner, Special Additional Commissioner or Assistant Commissioner and revise the same on finding that the order concerned was prejudicial to the interests of the revenue. But, the case of the petitioner is that the Commissioner of Sales Tax by a notification dated August 3, 1963 had delegated his revisional power under rule 80 of the Rules to the Assistant Commissioner of Sales Tax and since the Assistant Commissioner of Sales Tax had earlier issued a notice dated December 13, 1995 to the assessee invoking ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Commissioner had jurisdiction to invoke his power of revision. In the context of section 23(4) of the Act, the prohibition against revising an appellate order under rule 80 of the Rules had to be taken as applying only to an appellate order in a full sense, i.e., an order passed after considering any issue arising in appeal. It was held that it did not cover an order of rejection of an appeal under rule 49(1) of the Rules for failure to cure defects, when the appeal was not entertained at the threshold. Possibly in the context of this controversy, the rule was amended and the words "other than an appellate order" were deleted. The scope of the rule came up for consideration before the Supreme Court in Commissioner of Sales Tax, Orissa v. Halari Store [1997] 107 STC 579 in appeal from the decision of a Bench of this Court in [1996] 103 STC 26 (Halari Store v. Commissioner of Sales Tax) referred to earlier. The Supreme Court, after noticing the amendment of the rule, held that there was no manner of doubt that under section 23(4)(a) read with amended rule 80 of the Rules, the Commissioner had suo motu power to revise an appellate order as well. The view of this Court was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner of Sales Tax. The power to revise suo motu assessment orders passed by the Sales Tax and the Assistant Sales Tax Officers, provided that no appeal had been filed against such orders, available under sub-section (4)(a) of section 23 of the Act read with rule 80 of the Orissa Sales Tax Rules, was also delegated. Of course, in the light of the amendment to rule 80 of the Rules and the decision of the Supreme Court referred to earlier, the limitation in exercise of power precluding such exercise in cases where an appeal had been filed, is no more there. This delegation has necessarily to be understood in the context of the decision of the Supreme Court in Commissioner of Sales Tax, Orissa v. Halari Store [1997] 107 STC 579. 10.. We shall now refer to some of the relevant provisions to understand the scheme of the Act. Section 3 of the Act describes who is the taxing authority. Section 3(1) gives power to the State Government to appoint any person to be the Commissioner of Sales Tax to exercise such powers and such functions as are imposed by or conferred under the provisions of the Act. Section 3(3) gives power to the Government to appoint such other persons under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade thereunder by any person other than the Tribunal, appointed under sub-section (3) of section 3 to assist the Commissioner. Section 23(4)(c) provides for an appeal by any person aggrieved against the order passed by the Commissioner. Rule 79 of the Rules contemplates an application for revision to the Commissioner, inter alia, from an order of the Assistant Commissioner and rule 80 provides for a suo motu revision by the Commissioner against an order passed by an Assistant Commissioner of Sales Tax, when the Commissioner considers an order to be prejudicial to the interest of the Revenue. Thus, under the scheme of the Act and the Rules, we have no hesitation in coming to the conclusion that there is no fetter on the Commissioner in exercising his suo motu power of revision, against an order passed by any of the authorities referred to thereunder, whatever may be the jurisdiction that is invoked by that authority to pass the order sought to be revised. 11.. The learned counsel for the assessee predictably placed reliance on the observations in the decision of this Court in Orient Paper Mills v. State of Orissa [1988] 70 STC 333 wherein this Court held that the Commissioner could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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