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TMI Blog2010 (4) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... R. S. GARG C. J. The appellant, an assessee under the Assam General Sales Tax Act, 1993, being aggrieved by the judgment and order dated May 17, 2007 (Jyoti Forge Fabrication v. State of Assam) passed by a learned single judge of this court in W.P. (C) No. 6111 of 2002 See page 66 supra. confirming the orders passed by the learned Member, Board of Revenue and the revisional order passed by the Joint Commissioner of Taxes has come before us with a submission that the learned single judge so also the subordinate Tribunals were absolutely unjustified in not appreciating that the first order of assessment was contrary to or in violation of the principles of natural justice or the statutory requirements, then the said order would be null and void and any order of remand cannot extend the limitation as provided under section 37 of the Assam General Sales Tax Act. The short facts necessary for disposal of the present writ appeal are that the appellant-writ petitioner is an assessee under the provisions of the Assam General Sales Tax Act. For the assessment year 1993-94 (the assessment order was made on June 20, 1996) the appellant-writ petitioner was charged in addition to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teeth of the requirement of the law. The revisional authority under the circumstances set aside the rectification order and remanded the matter back to the assessing officer with the direction that it should pass a fresh order after giving appropriate opportunity of hearing to the appellant-writ petitioner. The appellant-writ petitioner being partly aggrieved by the revisional order preferred an appeal to the Board of Revenue with a submission that if during the pendency of the revisional proceedings the limitation of three years to pass a rectification order has already expired then the revisional authority could not remand the matter back to the assessing authority nor was it entitled under its revisional jurisdiction or under the provisions of law to extend the period of limitation as provided under section 37 of the Act. The Board of Revenue, however, did not agree with the contention raised by the appellant-writ petitioner and dismissed the appeal. The appellant-writ petitioner still assertive of his right and being dissatisfied by the orders passed by the revisional authority and the appellate authority preferred W.P. (C) No. 6111 of 2002. However, the said petition, as ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly provides for the limitation which is three years from the end of the financial year in which such assessment or order was made and the authority can take an action of its own motion or under the direction issued in revision or appeal and it can also rectify any arithmetical mistake or other mistake of a factual nature apparent from the record of the case. Section 37 clearly provides that no order of rectification shall be made if it has the effect of enhancing the assessment unless the affected party is allowed a reasonable opportunity of being heard. In our opinion it was rightly found by the revisional court that the principles of natural justice and the mandatory command of section 37(1) proviso were violated by the assessing officer in view of the facts that the appellant-writ petitioner was required to appear on September 21, 2000 while the notice was received by him on October 16, 2000 and the order of assessment was made on September 26, 2000. The appellant-writ petitioner is not aggrieved by that part of the order. The grievance sought to be ventilated before us is could the revisional authority remand the matter for passing/making a fresh order of assessment if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the matters of Director of Inspection of Income-tax (Investigation), New Delhi v. Pooran Mall Sons reported in [1974] 96 ITR 390, and in Commissioner of Income-tax v. National Taj Traders reported in [1980] 121 ITR 535 (SC); [1980] 1 SCC 370. His submission is that the limitation of three years as provided under section 37 of the Act is for the first authority and not to restrict the powers of the revisional or appellate authority. His submission is that in a case where the principles of natural justice or the statutory command are violated the revisional or the appellate court acting in accordance with the law will have to direct the first authority to pass a fresh order and in such a case the question of limitation would not arise. The learned counsel for the appellant-writ petitioner, in reply, has submitted that if the learned single judge was of the opinion that the two Division Bench judgments of this court were per incuriam then maintaining judicial discipline the learned single judge should have referred the matter to a larger Bench. We have heard the learned counsel for the parties at length and have also gone through the orders passed by the learned single judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the order beyond the period of limitation. It is common knowledge that in the judicial system or in the hierarchy of the system the delay is necessarily involved. In a given case when the limitation for passing an order is prescribed against the first authority then the first authority only is required to observe the limitation. If the revisional authority or the appellate authority or the High Court in its jurisdiction takes a longer time than the original limitation as provided under the law then the order of the first authority cannot be condemned on the ground of limitation. It would also be trite to say that the time spent in judicial proceedings or any such action would not affect the rights of the parties adversely. It would also be equally important to say that an action of the appellate/revisional authority or the court would cause no harm to anybody. In the present matter undisputedly the first order was made by the authority within the period of limitation. True it is that the learned single judge while distinguishing the case of Bengal Tea Fabrics Ltd. [1997] (II) GLT 30 did not refer the matter to larger Bench but the fact still remains that the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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