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TMI Blog2010 (4) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Commissioner of Sales Tax, Pune? Held that:- Questions referred do not arise from the order of the Tribunal. They need not be answered in the facts and circumstances of the case. We, therefore, return the reference keeping questions open for being considered in appropriate case. In the result, reference stands disposed of in terms of this order with no order as to costs. - 1 of 2002 - - - Dated:- 16-4-2010 - DAGA V.C. AND TATED K.K. , JJ. The judgment of the court was delivered by V. C. DAGA J. Heard learned counsel for the parties. Perused reference application. Introduction In the present reference application filed by the Commissioner, question of law referred to this court is whether on the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, issued legal notice in form 40 and passed the order of revision dated July 20, 1984. The learned Assistant Commissioner proceeded to levy purchase tax under section 14 of the Act on purchases of Rs. 4,39,175. After granting set-off under proviso to section 14(1) of the Act at Rs. 3,78,350, the Assistant Commissioner created demand of Rs. 13,906 by passing the revision order dated July 20, 1984. Aggrieved by the aforesaid order dated July 20, 1984, preferred an appeal before the Deputy Commissioner of Sales Tax (Appeals) under section 55 of the said Act, challenging the order passed by the Assistant Commissioner of Sales Tax in revision. The Deputy Commissioner of Sales Tax (Appeal) vide order dated March 18, 1986, has set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed by Additional Commissioner under section 57 of the said Act holding that the order was passed without having jurisdiction. Being aggrieved by the order dated April 30, 1990 passed by the Maharashtra Sales Tax Tribunal, the applicant preferred a Reference Application bearing No. 67 of 1992 in Appeal No. 22 of 1991 raising substantial question of law to be referred for the opinion of this court. The Tribunal has allowed the reference application and vide its order dated January 24, 1994 referred the following substantial questions of law to this court for determination. Question of law (1) Whether, on the facts and circumstances of the case, was the Tribunal justified in law in setting aside the revision order passed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also relied upon the judgment of this court in H.B. Munshi, Commissioner of Sales Tax v. Oriental Rubber Industries Pvt. Ltd. [1974] 34 STC 113 (Bom) and Tel Utpadak Kendra v. Deputy Commissioner of Sales Tax [1981] 48 STC 248 (SC) to buttress his submission. Borrowing support from the aforesaid decisions, Mr. Sonpal, learned counsel for the Revenue, submits that, it be declared that the Tribunal has erred in passing an order by setting aside the order passed by the Additional Commissioner, Pune. The questions referred be answered in favour of the Revenue and against the assessee. Per contra Mr. Joshi, learned counsel for the assessee, submits that on the basis of the provisions and the Rules applicable; (i) the word Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 57, as per the order of Assistant Commissioner, and the same not being the subjectmatter in appeal before the Deputy Commissioner, the question of merger did not arise. The notice in form 40 issued by the Additional Commissioner on January 31, 1989, sought to revise the order in appeal which, inter alia, did not refer to the grant of any set off much less the one under rule 41A. If at all the Additional Commissioner desired to revise the order of assessment, the same ought to have been done within the period of limitation provided in section 57. The power of revision, being that of superintendence, has to be exercised subject to the limitations provided under different sections and has to be resorted to by complying the two-fold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s behalf, May 1, 1970 date (a) the Commissioner may, of his own motion, call for and examine the record of any order passed (including an order passed in appeal) under this Act or the Rules made thereunder by any officer or person subordinate to him, and pass such order thereon as he thinks just and proper: Provided that, no notice in the prescribed form shall be served by the Commissioner under this clause after the expiry of three years from the date of the communication of the order sought to be revised, and no order in revision, shall be made by him hereunder after the expiry of five years from such date: Consideration After having heard both learned counsel canvassing rival views this court was of the prima facie view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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