9911796707
TMI Blog2008 (3) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... o way affects the right under article 300A of the Constitution of India also. Thus do not find any merit in the application and it is dismissed accordingly - - - - - Dated:- 28-3-2008 - CHANDRAMAULI KUMAR PRASAD ACTG. C.J AND MIHIR KUMAR JHA , JJ. CHANDRAMAULI KUMAR PRASAD ACTG. C.J. In this writ application filed under article 226 of the Constitution of India, the prayer of the petitioner is to quash the order dated March 16, 2006 passed by the Commissioner, Commercial Taxes in Revision No. 75/05-06, whereby it had dismissed the revision application filed by the petitioner. Further prayer made by the petitioner is for quashing the assessment orders dated February 20, 2004 and September 16, 2004 passed by the Assistant Commissioner of Commercial Taxes as also the consequential notices for payment of the amount assessed (annexure 3 series). The petitioner's further prayer is to declare section 46(4) of the Bihar Finance Act, 1981, hereinafter referred to as the Act as substituted by section 7 of the Bihar Taxation Law (Amendment) Act, 2004 to be ultra vires. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner is a prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as he deems fit after giving the dealer or the person concerned an opportunity of being heard. ... We have heard Mr. S.K. Sharan, appearing for the petitioner and Ms. Nilu Agrawal, Standing Counsel XIX for the State. Mr. S.D. Sanjay has also rendered assistance as amicus curiae. It is contended that the view taken by the Commissioner of Commercial Taxes, while dismissing the revision application that section 46(4) of the Act, is not fit to be entertained as the order of assessment being prejudicial to the interest of the revenue, is erroneous in law. It has been pointed out that in the facts of a given case, the Commissioner may not invoke its power under section 46(4) of the Act, but its substitution by the Bihar Taxation Law (Amendment) Act, 2004, in no way truncates its power. In support of the submission, reliance has been placed on a decision of this court in the case of Rakesh Kumar v. State of Bihar [1995] 2 PLJR 743. 9. Negation of that right of an assessee which was there in Bihar Finance Act, 1984 does not tantamount to in any way restrict the suo motu power of the Commissioner under sub-section (4)(a) and that power could be exercised by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstance, it is not the duty of the court to busy itself with supposed intention of the law givers. Bearing in mind, when I consider the language of section 46(4) of the Act, I find that the power of the Commissioner is hedged and it can exercise its power not only on its satisfaction that order is erroneous but he has to further satisfy that the same is prejudicial to the interest of Revenue . Any other interpretation would render the words of Legislature prejudicial to the interest of Revenue superfluous. The Legislature does not waste its words and construction which attributes redundancy is not accepted except for compelling reasons. In the face of clear and plain language and in the absence of any compelling reason to render the words of the Legislature redundant, there is no escape from the conclusion that the Commissioner can exercise its power under section 46(4) of the Act only when it is satisfied that the order is prejudicial to the interest of the Revenue. In other words, condition precedent for exercise of power of revision under section 46(4) of the Act is that the order has to be prejudicial to the interest of Revenue. The Commissioner has dismissed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: 40....We fail to understand as to why the Legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid... It has lastly been contended that remedy under section 46(4) of the Act if held limited only in a case when the order is found to be prejudicial to the interest of the Revenue, the same shall be discriminatory, impeding the right to trade and business as also the right of property guaranteed under articles 14, 19(1)(g) and 300A of the Constitution of India. It has been pointed out that to invoke remedy of appeal, certain percentum of tax assessed is to be paid and prohibiting the assessee to invoke the revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
