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TMI Blog2009 (12) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion by the revisional authority. Accordingly, having regard to the scope and ambit of the provisions of section 36 and also the decisions relied upon by the assessee, I am of the view that in the present case, the exercise of suo motu revisional power by the Joint Commissioner was not supported by law. W.P. allowed. - Writ Petition (C) No. 8080 of 2004 - - - Dated:- 9-12-2009 - HRISHIKESH ROY , J. JUDGMENT:- HRISHIKESH ROY J. Heard Dr. B.P. Todi, learned senior counsel appearing for the writ petitioner (assessee). Also heard Mr. R. Dubey, learned counsel representing the respondents (Revenue). The assessee herein challenges the order dated February 7, 2004 passed by the Joint Commissioner of Taxes in purported exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 11, 2003 was issued with the intimation that the appellate order passed in favour of the assessee is erroneous and also prejudicial to the interest of the Revenue and accordingly the assessee was asked to respond to the show-cause notice. The assessee sought information as to the actual basis for considering the assessment as erroneous and prejudicial to the interest of the Revenue. But even without disclosing the factual foundation for making the allegation, in exercise of suo motu power of revision under section 36(1), the impugned order dated February 7, 2004 has been passed, directing a fresh assessment for the year in question. It is argued by Dr. B.P. Todi that rectification under section 37(1) of the AGST Act can be order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be unauthorised by law. On the other hand it is contended by Mr. R. Dubey, learned counsel representing the Revenue, that for correction of a manifest illegality and impropriety in the assessment order, exercise of revisional power would always be justified and in the instant case it is submitted that the suo motu power has been invoked to correct a procedural illegality and to protect the interest of the Revenue. To deal with the rival contentions, it may be appropriate now to take note of some of the judgments cited on behalf of the petitioner. The decision in Master Construction Co. (P.) Ltd. v. State of Orissa reported in [1966] 17 STC 360 (SC) has been referred to, where the Supreme Court while examining a pari materia provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed in the showcause notice as to the basis on which the action is proposed and the notice must indicate as to on what grounds, the order is considered erroneous in so far as it is prejudicial to the interest of the Revenue. The decision in the case of B.B. Astekar v. Commissioner of Commercial Taxes, Mysore reported in [1967] 19 STC 462 (Mys) has also been relied upon by Dr. Todi to contend that revisional power can be exercised in a given case, only if it is found that the assessment order suffers from an illegality or impropriety or is a result of procedural irregularity. The Madras High Court decision reported in [1994] 93 STC 42 in the case of V. Ramasamy Brothers v. State of Tamil Nadu is also cited by the learned counsel t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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