9911796707
TMI Blog2010 (4) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... artment at different level" and that such power is exercised within a period of limitation? Facts The respondent herein is a dealer registered under the provisions of the Bombay Sales Tax Act as a manufacturer and has made purchases on furnishing declaration in form 15 during the period 1st July, 1975 to June 30, 1976. As per the said declaration of form 15, the goods so purchased were to be used in manufacturing activity. The Sales Tax Officer, Nashik, on the basis of the returns filed by the respondent, on June 30, 1981 has assessed the said respondent wherein, he allowed set-off under rule 41A of the Bombay Sales Tax Rules, 1959 (the Rules) at Rs. 1,33,104 but disallowed set-off proportionately in respect of the use of purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember, 1990, on scrutiny of the order passed by the Deputy Commissioner of Sales Tax (Appeals) has found that there was an error committed by the Deputy Commissioner of Sales Tax (Appeals) in passing the order in not withdrawing the set off granted by the Sales Tax Officer. It was noticed by the Additional Commissioner of Sales Tax that the Deputy Commissioner of Sales Tax (Appeals) has set aside the purchase tax levied under section 14(1) but has not withdrawn the set off granted while deleting the purchase tax under section 41(1) of the said Act. The Additional Commissioner, therefore, has withdrawn the set off which was not withdrawn by the Deputy Commissioner of Sales Tax (Appeals). Aggrieved by the aforesaid order dated September 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sales Tax? (2) Whether, on the facts and circumstances of the case, was the Tribunal justified in law in holding that the revisional power cannot be exercised twice by the Departmental Authority on the same subject and consequently setting aside the order passed by the Additional Commissioner of Sales Tax, Pune? Submission Mr. Sonpal appearing on behalf of the Revenue urged that the provisions of section 57 holding the field at the relevant time permitted the revisionary authority to suo motu 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 revisionary authority may think just and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here mentions about set off as a related action or a consequential one, except what is stated in the proviso thereto. (iv) the power of the respective authorities are codified one under section 20 with the clear provision that all the authorities appointed under sub-section (2) of section 20 were subordinate to the Commissioner. In other words, the Commissioner is the fountain source of all powers while the powers of the Assistant Commissioner, as provided in sub-section (6) of section 20, were only delegated powers. Once the delegated powers are utilized by one of the delegate, nothing survived for being exercised at any time in future. Mr. Joshi further submits that, section 55 read with rule 58 restricted the scope of power of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal was admittedly not only without jurisdiction but it was barred by limitation. Before proceeding to consider rival submissions, let us turn to the relevant statutory provisions which were holding the field at the relevant time. Relevant statutory provisions Section 55. Appeals.-(1) An appeal, from every original order, not being an order mentioned in section 56 passed under this Act or the rules made thereunder, shall lie,- (a) . . . (b) if the order is made by an Assistant Commissioner, to the Deputy Commissioner. (c) . . . (2) to (5) . . . (6) Subject to such rules of procedure as may be prescribed, every appellate authority (both in the first appeal and the second appeal) shall have the following powers: (a) and (b) . . . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under section 57 of the Act. As per the proviso to section 57(1)(a), no notice in the prescribed form can be served by the Commissioner after expiry of three years under this section from the date of the communication of the order sought to be revised and no order in revision shall be made by him after expiry of five years from the said date. This legal position is clear from the text of section 57 quoted hereinabove. On being asked, Mr. Sonpal fairly conceded and went on to submit that even if he is held to be right in his submission with regard to the maintainability of second revision under section 57 of the BST Act, even then, the revisional power ought to have been exercised within a period of three years from the date of communica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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