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TMI Blog2008 (3) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... ed therein are quashed. - W.P. (T) No. 2223,5892,5895,6377 of 2007 - - - Dated:- 14-3-2008 - EQBAL M.Y. AND SINHA D.K. , JJ. M.Y. EQBAL J. In these writ petitions, since common questions of law and facts are involved, they have been heard together and are disposed of by this common judgment. In W.P. (T) No. 6377 of 2007, the petitioner-assessee has prayed for quashing the notice dated February 20, 2007 issued by the Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad, whereby he has initiated suo motu revision proceedings under section 46(4) of the Bihar Finance Act, 1981 and further for a declaration that the impugned notice issued by the Joint Commissioner is bad in law and does not fulfil the mandatory requirement of the Act. The petitioner also seeks a direction upon the respondents to refund the excess amount realised from it by the respondents for which refund applications of the petitioner are pending before them. By filing an amendment petition, the petitioner also sought for quashing the order dated November 26, 2007 passed by respondent No.3 Joint Commissioner of Commercial Taxes by which he has set aside the revised assessment order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt orders were passed on December 26, 2003 on the basis of the guidelines issued by the Joint Commissioner of Commercial Taxes (Appeals). On the same day, i.e., December 26, 2003, the Assessing Officer issued notice to the petitioner in respect of excess amount of tax paid by the petitioner for various financial years as well as notice of demand towards the tax amount payable by the petitioner in respect of various financial years. It is stated by the petitioner that on March 10, 2005, an application was filed for refund of excess amount of tax after the adjustment of the amount to be paid by the petitioner. Accordingly, on August 21, 2006, a notice was issued by the Deputy Commissioner of Commercial Taxes to the petitioner to file its refund application before the Joint Commissioner of Commercial Taxes since the amount refundable to the petitioner is above Rs. 25,000. After more than a month, another notice was issued on October 9, 2006 by the Deputy Commissioner of Commercial Taxes informing the petitioner that refund would be made only after the disposal of the section 46(4) proceedings which had been initiated against the petitioner. It is alleged by the petitioner that on Octo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication was filed. In the meantime, section 46(4) proceeding was initiated by the Joint Commissioner of Commercial Taxes (Appeal). The common questions of law involved in these writ applications are: (i) Whether the Joint Commissioner of Commercial Taxes can initiate suo motu revision proceeding on the basis of application/letter received from Deputy Commissioner of Commercial Taxes? (ii) Whether after assessment order attained its finality, the same can be reopened by invoking power of suo motu revision by the Joint Commissioner of Commercial Taxes under section 46(4) of the Act? (iii) Whether the action of the Joint Commissioner of Commercial Taxes in issuing notice and initiating suo motu revision is illegal, arbitrary, mala fide and without jurisdiction in the facts and circumstances of the case? The main thrust of argument advanced by the counsel appearing for the petitioner-assessee is firstly that the Joint Commissioner of Commercial Taxes cannot initiate suo motu revision proceeding under section 46(4) of the Act on the basis of application filed by the Revenue and secondly, that the assessment order which has attained finality long back, cannot be reopened on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that in other cases, Division Bench of this court in similar circumstances directed the writ petitioners to move the Commercial Taxes Tribunal by filing revision. Learned counsel then submitted that no limitation is provided for initiation of suo motu revision proceedings under section 46(4) of the Bihar Finance Act. The limitation is 90 days for filing revision application under section 46(3) of the Act. Learned counsel in this regard referred the decision of the Supreme Court in the case of Swastik Oil Mills Ltd. v. H.B. Munshi, Deputy Commissioner of Sales Tax [1968] 21 STC 383 (SC); AIR 1968 SC 843. Refuting the submission made by the assessee, Mr. Modi submitted that it is not a case where application was filed by the Deputy Commissioner for initiation of revision proceedings, rather only the illegality was brought to the notice of the Joint Commissioner and no such illegality having been brought to the notice of the Joint Commissioner, the proceeding under section 46(4) was initiated. Learned counsel relied upon the decision of the Patna High Court in the case of Rakesh Kumar v. State of Bihar [1995] BRLJ 152. Before adverting to the rival contentions of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of four years from the date of the order which is the subject of scrutiny by Commissioner under this sub-section. (6) No order under this section shall be passed without giving the dealer as also the authority whose order is sought to be revised or their representative, a reasonable opportunity of being heard. From a bare reading of the aforesaid provision, it is manifestly clear that under section 31 of the 1959 Act, no restriction was put on the power of the revisional authority under sub-section (1), sub-section (2) or sub-section (3) of section 31 of the Act. Under sub-section (5), the Commissioner was vested with the power of calling for and examining any record of any proceeding under the Act for the purposes of satisfying himself as to the legality or propriety of an order passed by any subordinate authority. Sub-section (5) of section 31, however, provided that the Commissioner cannot initiate such revision proceedings after the expiry of four years from the date of the order. In 1976, an Ordinance was promulgated by which the Commissioner was vested with the power to call for and examine any record of proceeding and pass any order thereon. The statute did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order has been passed by any other authority appointed under section 8 for the purpose of satisfying himself as to the legality or propriety of such order and may, after examining record and making or causing to be made such enquiry as he may deem to be necessary, pass any order which he thinks proper: Provided that no action under this section shall be initiated except before the expiry of four years from the date of the order which is the subject of scrutiny by Commissioner under this sub-section. (6) No order under this section shall be passed without giving the dealer as also the authority whose order is sought to be revised or their representatives a reasonable opportunity of being heard. A consolidated Act was passed amending the law relating to levy of tax for sale and purchase of goods called the Bihar Finance Act, 1981. In the said Act, section 45 lays down the provision of appeal and section 46 of the Act lays down the provision of revision. Section 46 reads as under: 46. Revision. (1) Subject to such Rules as may be made by the State Government an order passed on an appeal under sub-section (1) or (2) of section 45 may, on application, be revised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner. In 1984, section 46 of the 1981 Act was substituted by section 10(2) of the Amendment Act, 1984. Section 10 of the Bihar Finance (Amendment) Act, 1984 reads as under: 10. Amendment of section 46 of the Bihar Act V, 1981 (Part I). (1) in sub-section (3) of section 46 of the said Act for the word 'sixty' the word 'ninety' shall be substituted. (2) For sub-section (4) the following sub-section shall be substituted, namely: '(4)(a) The Commissioner may, on his own motion call for and examine the records of any proceeding in which any order has been passed by any other authority appointed under section 9, for the purpose of satisfying himself as to the legality or propriety of such order and may, after examining the record and making or causing to be made such enquiry as he may deem necessary, pass such order as he thinks proper. (b) The Commissioner may also revise any order passed by any authority appointed under section 9 on application seeking revision of such order: Provided that where an application is filed seeking revision of any order, such an application shall be entertained only if made within ninety days of the date of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959 lays down the provisions for revision. Under this section the Commissioner may, of his own motion, call for and examine the record of any order passed under the Act by any officer or person subordinate to him and pass such order thereon as he thinks just and proper. The proviso to the aforesaid section prescribes limitation of three years only for exercising power from the date of communication of the order sought to be revised. It further provides that no order in revision, shall be made by him after expiry of five years from such date. The proviso further provides that period of limitation of five years shall not apply in case where the point or points involved in the revision proceedings are the subject-matter of any proceedings pending before the Tribunal, High Court or Supreme Court and in such case the Commissioner can decide the revision proceedings within eighteen months from the date of notice of hearing served on the assessee. It would be proper to quote section 57 of the Bombay Sales Act, 1959, which reads as under: 57. Revision. (1) Subject to the provisions of section 56 and to any rules, which may be made in this behalf, (a) the Commissioner may, of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry or cause such inquiry to be made and, subject to the provisions of the Act, may pass such order thereon not being an order prejudicial to the dealer, as he thinks fit. Proviso to section 47 provides that the Commissioner shall not revise any order where an appeal against the order is pending before the appellate authority under section 43 or where if such appeal lies, the time within which it may be filed has not expired or where in the case of second appeal, the dealer has not waived his right of appeal. Sub-section (2) of section 47 prescribed limitation of two years to exercise that power from the date of the order sought to be revised. Section 48 of the Delhi Sales Tax Act confers power to the Commissioner for rectification of mistakes. Section 48 reads as under: 48. Rectification of mistakes. (1) The Commissioner or any person appointed under sub-section (2) of section 9 to assist him, may at any time within two years from the date of any order passed by the Commissioner or by that person, as the case may be, on his own motion, rectify any mistake apparent from the record and shall within a like period rectify any such mistake which has been brought to his notice by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass such order as he thinks just and proper within twelve months from the date of service of notice for revision. This section also confers power to the Tribunal to call for and examine the record on application made to it against the order of the Commissioner and pass such order as he thinks just and proper. Section 40 of the Haryana General Sales Tax Act, 1973 lays down the provision of revision. Under this section, the Commissioner may of his own motion call for the record of any case pending before, or disposed of by any officer appointed under sub-section (1) of section 3 of the Act other than the order of the Tribunal, for the purpose of satisfying himself as to the legality or to propriety of any proceedings or any order made therein and may pass such order as he may think fit. It further provides that no order shall be revised after the expiry of a period of five years from the date of the order. Section 31 of the Himachal Pradesh General Sales Tax Act, 1968 confers power of revision. According to this section, the Commissioner may of his own motion call for the record of any proceeding which is pending before or has been disposed of by any authority subordinate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against the order has been filed. It further provides that no revision shall lie against the order determining the liability of a dealer to pay tax or against a notice issued for assessment. For better appreciation, section 62 of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 is reproduced hereinbelow: 62. Power of revision by Commissioner. (1) The Commissioner, (a) either on his own motion, may; or (b) on an application by a dealer or person made within the prescribed period from the date of order, shall, call for the record of the proceeding in which any order was passed and on receipt of the record may make such enquiry or cause such enquiry to be made, as he considers necessary and subject to the provisions of this Act may pass such order thereon, not being an order prejudicial to the dealer or person, as he thinks fit: Provided that the Commissioner shall not revise any order under this sub-section (a) where an appeal against the order is pending before any authority specified in sub-section (1) of section 61 or where, if such appeal lies, the time within which it may be filed has not expired; or (b) where a second appeal against the order has been file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 shall mutatis mutandis, apply to appeals filed under sub-section (4). (6) Where the Commissioner considers that any order passed under sub-section (1) by his predecessor or any Additional Commissioner of Commercial Tax is erroneous insofar as it is prejudicial to the interest of Revenue, he may file an appeal against such order before the Tribunal within two years from the date of such order. The provisions of section 61 shall, mutatis mutandis, apply to the appeal filed under this sub-section. (7) Notwithstanding anything contained in sub-section (1), but subject to such restrictions and conditions as may be prescribed, where on an application made by a dealer the State Government is of the opinion that hardship is being caused to such dealer due to any order passed under any of the provisions of this Act other than an order under section 32 or an order passed in pursuance or in consequence of an order by the Tribunal or the Civil Court, High Court, or Supreme Court, the State Government may direct the Commissioner to initiate proceedings under sub-section (1) in respect of such order and on such direction the Commissioner shall dispose of such proceeding according to law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all within a like period rectify any such mistake which has been brought to his notice by any person affected by such order: Provided that no such rectification shall be made if it has the effect of enhancing the tax or reducing the amount of refund, unless the Commissioner or the officer on whom the powers of the Commissioner under sub-section (1) of section 21 have been conferred by the State Government has given notice in writing to such person of his intention to do so and has allowed such person a reasonable opportunity of being heard. (2) The provisions of sub-section (1) shall apply to the rectification of a mistake by a Tribunal as they apply to the rectification of a mistake by the Commissioner. (3) Where any such rectification has the effect of reducing the amount of the tax or penalty the Commissioner shall in the prescribed manner order the refund of the amount so due to such person. (4) Where any such rectification has the effect of enhancing the amount of the tax or penalty or reducing the amount of the refund, the Commissioner shall order the recovery of the amount due from such person in the manner provided for in sections 11 and 11B. Section 87 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is prejudicial to the interests of Revenue, may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order thereon as he thinks fit. (2) The Joint Commissioner of Commercial Taxes shall not initiate proceedings against any such order or proceedings referred to in subsection (1), if (a) the time for appeal against the order has not expired; or (b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the Special Tribunal; or (c) more than five years have expired after the passing of the order: Provided that if the order passed or proceeding recorded by the appropriate authority, or Deputy Commissioner referred to in subsection (1) involves an issue on which Special Tribunal has given its decision adverse to the Revenue in any other proceedings, and an appeal to the Supreme Court against the order of the Special Tribunal is pending, the period of time between the date of the abovesaid order of the Special Tribunal and the date of the order of the Supreme Court shall be excluded in com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, upon application, revise any order other than the order referred to in section 82 and an order of assessment against which an appeal lies under section 79. Section 82 confers power upon the appellate authority and revisional board to revise any final appellate or revisional order from an order of assessment upon application filed by the person concerned. From perusal of relevant provisions of the statutes of different States, it is manifestly clear that the authorities have been conferred jurisdiction not only to revise the orders passed by the authorities subordinate to it, but also initiate suo motu revision for seeing the correctness, legality and validity of the order passed by the authorities under the Act. But there are limitations prescribed under the Act. As noticed above, under the Bombay Sales Tax Act, the Commissioner can exercise his power of suo motu revision before the expiry of three years from the date of communication of the order sought to be revised. Subsection (2) of section 57 categorically provides that such proceeding should not be entertained upon application. The Delhi Sales Tax Act empowers the Commissioner to rectify any mistake apparent from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Joint Commissioner of Commercial Taxes. The extent and power of revision conferred upon the revisional authority under different statutes, referred to hereinabove, came for consideration before the Supreme Court and different High Courts. In the case of Swastik Oil Mills Ltd. v. H.B. Munshi [1968] 21 STC 383 (SC); AIR 1968 SC 843, the Supreme Court considered the power of revision under the provisions of the Bombay Sales Tax Act, 1959. On the question of power of revisional authority, the Supreme Court held that whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it. Their Lordships held that the proceedings for revision, if started suo motu, must not, of course, be based on a mere conjecture and there should be some ground for invoking the revisional powers. Once those powers are invoked, the actual interference must be based on sufficient grounds and if it is considered necessary that some additional enquiry should be made to arrive at a proper and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represented commission sales which were exempted from tax under the Act. The Deputy Commercial Tax Officer granted exemption from tax on the commission sales by order dated February 19, 1952 and assessed the tax payable on the taxable turnover of the respondent. Sometime before February, 1956, the Deputy Commissioner of Commercial Taxes, Coimbatore Division, called for the record of the case of the respondent for the assessment year in question in exercise of power under section 12(2) of the Act and directed an enquiry into the validity of the claim about exemption in respect of the commission sales under section 8 of the Act. The Deputy Commissioner accordingly issued show-cause notice which ultimately resulted in enhancement of tax and revised the order. In appeal filed by the assessee, the Sales Tax Appellate Tribunal, Madras, held that the assessing officer had acted in excess of his jurisdiction. Against the order passed by the Tribunal, the State of Kerala moved the High Court. The High Court held that in dealing with the proceedings under section 12(2) of the Madras General Sales Tax Act, the revising authority is restricted to the record before the assessing authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took place outside the State of Bihar and was, therefore, not taxable under the Bihar Sales Tax Act. When the assessing officer rejected the contention and included the said amount in his turnover, he went in appeal against to the Assistant Commissioner of Sales Tax, Patna Division, Patna, who held that the sale of chillis was exempted from taxation as that was a sale outside the State of Bihar. On some other points, the dealer failed to get redress before the appellate authority and, therefore, he went in revision in regard to those points where he had failed. That authority remanded the case to the taxing officer with certain directions in regard to two points, namely, the discrepancy of the figure to the extent of Rs. 2,522 in the account books and the return and the apportionment of Arhat charges in the turnover under various categories. When the matter went, on remand, before the assessing officer, he, in disregard to the exemption of the sales of chillis as allowed by the Commissioner, included the same in the assessee's turnover as he had done at the first instance. Against that, the dealer again went in appeal but without success. His revision before the Deputy Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. Secondly, on reading the remand order as a whole it can be legitimately contended that the Deputy Commissioner wanted that the whole appellate order even in respect of the exemption from taxation of the sales of chillis was to be set side. In either view of the matter, therefore, the inclusion of the sales of chills in the turnover of the dealer in the assessment made by the Superintendent of Sales Tax, after remand of the case by the Deputy Commissioner, was without the authority of law and outside his jurisdiction. This question is, therefore, answered in the negative and against the Department. In the case of Pathikonda Balasubba Setty v. Commissioner of IncomeTax, Mysore [1967] 65 ITR 252 (Mys), the power of Tribunal has been discussed in different Tax Acts. In that case the Income-tax Officer estimated the gross profit under two of the various businesses carried on by the assessee. The officer found suspicious entries but did not make any addition specifically for that purpose. A further addition of Rs. 20,000 was made on account of unexplained stock. On appeal, the Appellate Assistant Commissioner gave substantial relief on the addition to the gross profit but did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the Tribunal. The Tribunal dismissed the appeals. At the same time, the Tribunal adjourned the two second appeals filed by the appellant against the appellate orders. The Tribunal took the view that its deciding those appeals would result in nullifying the revisional power vested in the Deputy Commissioner. The appellant, thereafter, filed writ application in the Bombay High Court against the order of the Deputy Commissioner rejecting its preliminary objection. The point pressed by the appellant before the High Court was that the Commissioner of Sales Tax could not exercise his revisional power against the appellate order of the Assistant Commissioner when a second appeal against that order was pending before the Tribunal. The High Court turned down the plea by its order dated July 5, 1978 observing that it was always open to the Commissioner to interfere in revision with an order prejudicial to the revenue notwithstanding that such order may be already under appeal before the Tribunal. The High Court felt compelled to take this view because, in its opinion, the statute did not provide any other forum or jurisdiction for protecting the interests of the Revenue. It relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay Sales Tax Act, an express provision to that effect would have been made. Reference has also been made to the provisions in the Customs Act, 1962, conferring revisional jurisdiction. We are not impressed by the contention. The absence of an express provision cannot detract from the conclusion reached by us a conclusion flowing from the necessary intendment of the statute that the Commissioner being a subordinate authority to the Tribunal, cannot interfere with an order pending in appeal before the Tribunal, and further that the interest of the Revenue is protected by the power of enhancement vested in the Tribunal while disposing of a second appeal filed by a dealer. In the case of Baijnath Biswanath v. State of Assam [2003] 133 STC 300, the Gauhati High Court discussed the revisional power of the Commissioner conferred under section 20(1) of the Assam Finance (Sales Tax) Act, 1956 and held as under: 7. To overcome the above controversy, section 263 of the Incometax Act was amended and Explanation was incorporated for removal of doubts. The legislative will is clear and unambiguous. It has given full powers to the Commissioner to make or cause to be made such enquiry a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et information and the report from the Department of Agriculture in determining the sale price. In the absence of any authentic material regarding sale price on the date of assessment, the Commissioner ought not to have acted on such information. The minimum rate and the maximum rate, as indicated by the Commissioner, which led him to arrive at a particular sale price/market price, cannot, therefore, be legally sustained. The revisional authority is required to act on materials on record. A decision to be sustained lawfully, is to be based on materials, otherwise the decision will suffer from the vice of perversity. The Commissioner is authorised to take any decision as he deems fit and is free to draw any inference from the facts available. He is, however, to act on factual material and not on conjectures, assumptions and presumptions, else the decision will suffer from the vice of perversity. In this case, the revisional authority in determining the price of onions referred to same prices which were collected by the Department from the market as well as from the Agricultural Marketing Board, Assam. The sale price depends on the market force and in the absence of any valid piec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly entitled to in law. We are not able to appreciate the averments made in the counter-affidavit, which are in the nature of grounds attacking the order passed by the appellate authority. There is no answer forthcoming from the department as to how they could refuse to refund the amounts to the petitioner as is required under section 21(2) of the Act. The high-handed and arbitrary action of the respondents is required to be deprecated and we accordingly do so. From the ratio decided by the Supreme Court and different High Courts law with regard to the revisional power has been set at rest. The revisional authority, while exercising power of revision under the taxation law, is entitled to examine the correctness, legality and propriety of the order and there is no bar to hold further enquiry for coming to the right conclusion. But while exercising power of revision against the revised assessment order in terms of the order passed by the appellate authority, the revisional authority cannot set aside that part of the order which has been affirmed by the appellate authority while remanding the matter to the assessing authority. So far the power delegated to the Joint Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -56 by order dated November 23, 1959. The Assistant Commissioner vide order dated February 11, 1960 held that the assessment for the two quarters is timebarred and ordered for reassessment for the third and fourth quarter and the Sales Tax Officer passed fresh assessment order on March 21, 1960. The Commissioner exercising revisional power under section 20(3) of the Act revised the appellate order of the Assistant Commissioner on July 29, 1960 and held that no part of assessment for the year 1955-56 is time-barred. The assessee ultimately came to the Supreme Court assailing the order on the ground that in cases the orders are the orders of remand for fresh assessment to the assessing authority then also they must pass their orders within the periods prescribed. It was also assailed that the Commissioner while exercising power in revision cannot overstay and ignore the period of limitation of three years provided in section 11A of the Act. Answering the question, their Lordships observed (at page 428 of 37 STC): 7. Section 20 deals with an appeal, revision or review. If the appeal is filed in time the appellate authority in disposing of any appeal filed under sub-section (1) may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandeshwar Singh [1970] 25 STC 114 (Patna), the review proceedings initiated by the assessing authority were held to be barred under the proviso to section 13(6) of the Bihar Sales Tax Act, 1947. But distinguishing the said decision another Bench of the Patna High Court held in Commissioner of Commercial Taxes, Bihar v. Ashoka Marketing Ltd. [1974] 33 STC 24, that the order of review passed by the Deputy Commissioner was not barred by time. The decision of the Patna High Court in Commissioner of Commercial Taxes, Bihar, Patna v. Sheodutta Prasad Chandeshwar Singh [1970] 25 STC 114, on identical facts, was followed in Commissioner of Commercial Taxes, Bihar v. Shiva Pujan Prasad Bhagat [1974] 33 STC 466. But the principle decided in those cases cannot help the appellant. It may well be that if the assessing authority itself exercises the power of review it cannot circumscribe the bar of limitation provided in section 11(2a). But it will be unjust, unreasonable and impracticable to say that the said bar of limitation must also continue to run at all stages of the proceedings, namely, the appellate, revisional, reference, writ or any other stage. It was pointed out by this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When a dealer applies for and obtains a registration certificate under the Act, he thereby admits his liability to pay tax. In his case, the sales tax authorities, have basic information, in pursuance of which they can, by the exercise of due vigilance, check and detect any tax evasion by him within a reasonable time. This reasonable time is the period of limitation fixed by the Legislature, in its wisdom, in section 35. But the case of a tax evading unregistered dealer is different. In his case, the authorities have on their record no such basic information such as the registration record which would supply them a 'lead' to work upon. For lack of information, or want of adequate staff, resources and time at the disposal of the department, and the secretive nature of the modus operandi, tax evading activities of an unregistered dealer may go on undetected for years on end. That is why for taking action under section 33(6) against a tax evading unregistered dealer, the Legislature has not fixed any period of limitation. Thus, putting the unregistered dealer, who, though liable to pay tax, fails to get himself registered and does not pay any tax, in a separate class, to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be completed within a reasonable period. What such reasonable period would be, would depend upon facts of each case. One view can be that it should be a period not exceeding five years as the Legislature has fixed the limitation of five years for completing assessments in case of escaped turnover. Unless there be an assessment made soon after the period to which such assessment relates, the question of consideration of escapement would indeed become difficult to consider and examine. We are, however, not inclined to extend into a situation like the one before us, a period of limitation for completion of assessments under section 11(3) or 28(3) of the respective Acts. The assessee has made returns for all the quarters and must have paid its admitted tax. Now that the assessing authority intends to complete assessments under section 11(3) of the Act, we see no prejudice to the assessee if the assessing authority is permitted to complete the assessment now. On the other hand, if no assessment is made an anomalous situation might arise and even though the assessee has collected the sales tax on its sale turnover, it might raise a claim for refund of it in the absence of an assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the federation doing business of milk was assessed. In 1948 Act period of three years has been prescribed as period of limitation for completing assessment from the last day for filing of return. Section 20 confers power upon the Commissioner to exercise power of revision. The Supreme Court observed (at para 16 of 10 VST): 16. Sub-section (1) of section 11 empowers the Commissioner to extend the period of three years for passing the order of assessment wherefor reasons are required to be recorded in writing subject, however, to the maximum period of five years. Ordinarily, therefore, a period of three years has been prescribed for completion of the assessment in terms of the provisions of the Act. We may also notice that in cases where an assessment order is to be reviewed, the same should be done within a period of one year. 16.. A bare reading of section 21 of the Act would reveal that although no period of limitation has been prescribed therefor, the same would not mean that the suo motu power can be exercised at any time. 17.. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mally, a proviso is enacted to carve out something special out of the general enactment or to qualify what is in the enactment. By enacting the proviso the Legislature has excluded the revisional jurisdiction of the Commissioner of Sales Tax to revise an appellate order if invoked at the instance of a dealer or person when such dealer or person has a remedy by way of an appeal. As noticed earlier, the limitation on the suo motu power of the Commissioner as to revise an appellate order has not been expressly provided in the proviso. In the absence of any expressed provisions, no limitation on suo motu power of the Commissioner to revise an appellate order can be implied. We, accordingly hold that the provisions of proviso to sub-section (4)(a) of section 23 of the Act do not prohibit the Commissioner to exercise suo motu revisional power to revise an appellate order. As noticed above, a suo motu power has been vested to the Commissioner to exercise revisional jurisdiction. But no time-limit is prescribed to exercise such suo motu power unlike 90 days under section 46(3) of the Act. It does not mean that it is a continuing power authorised to the concerned authority. From bare pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be exercised. And the reasonable time is three years as prescribed under article 137 of the Limitation Act as a residuary provision of Limitation Act, 1963. In the light of the discussion made above, it is necessary to consider as to whether the impugned notices issued by the Joint Commissioner of Commercial Taxes initiating revision proceeding under section 46(4) of the Act was on his own motion or on an application. In W.P. (T) No. 6377 of 2007, it is specific case of the petitioner that in compliance of the order of demand passed by the Joint Commissioner of Commercial Taxes (Appeals) in respect of all the financial years, the assessing officer finally passed the revised assessment order on December 26, 2003. After about three years, i.e., on October 10, 2006, the Deputy Commissioner of Commercial Taxes, Dhanbad division made an application before the Joint Commissioner of Commercial Taxes (Admn.) to initiate proceeding under section 46(4) of the Act. A copy of the said application has been annexed as annexure 5 to the writ petition. In the said application addressed to the Joint Commissioner of Commercial Taxes (Admn.), the Deputy Commissioner prayed for revision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners to file refund application before the Joint Commissioner of Commercial Taxes. It is at this stage, on the basis of application filed by the Deputy Commissioner of Commercial Taxes for initiation of suo motu revision proceeding, the Joint Commissioner of Commercial Taxes entertaining such applications, issued notices for initiation of suo motu revision proceedings. Prima facie, therefore, we are of the view that initiation of such suo motu proceedings on the basis of applications filed by the Deputy Commissioner of Commercial Taxes are wholly illegal, improper and without jurisdiction. The initiation of such proceeding is not only colourable exercise of power and abuse of process of law, but the same is mala fide also. Even assuming that the Joint Commissioner of Commercial Taxes can entertain application filed by the Revenue for initiation of revision proceeding, the same cannot be initiated after expiry of ninety days as contemplated under section 46(3) of the Act for entertaining a regular revision application. Having regard to the entire facts and circumstances of the case and after considering the law discussed hereinabove, we are of the view that the impugned not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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