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TMI Blog2015 (8) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.29 of 2012 raises questions of law. 3. This application, therefore, came to be filed on 16.10.2012 and the Revenue urged that the following two questions are questions of law. They are reproduced accordingly: "(i) Whether in view of the facts and circumstances of the case, the Tribunal was justified in holding that the order of Assessment has not merged in the Order of Revision dated 28.08.2006 passed by the Joint Commissioner of Sales Tax (Adm), Pune ? (ii) Whether in view of the facts and circumstances of the case, the Tribunal was justified in holding that there is no merger of assessment with Revision Order passed by Joint Commissioner of Sales Tax (Adm), Pune and hence, the Revision order passed by the Additional Commissioner of Sales Tax (VAT1), Mumbai dated 02.07.2011 was barred by limitation ?" 4. A brief factual background would be necessary so as to appreciate the contentions of Mrs.Anjali Helekar, learned Counsel appearing for the appellant as also Mr.P. V. Surte, learned Counsel appearing for the respondent. 5. The Respondent before us is a private limited company and manufacturer of barrels (drums) etc. The assessment order for the period 2001-02 was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal that the principle of merger cannot be invoked. Secondly, she submits that the order of the Joint Commissioner could have been revised and the Additional Commissioner, therefore, has power, authority and jurisdiction to do so. She invites our attention to Section 57 of the Bombay Sales Tax Act, 1959 and the pari materia provisions under the Mahrashtra Value Added Tax Act, 2002. Lastly, she submits that there is no substance in the contention that the revision notice was barred by limitation. She would submit that the Tribunal has erroneously relied upon the decision of this Court in Sales Tax Reference No.14 of 2011 decided on 17.11.2011 (Additional Commissioner of Sales Tax Vs. Kirloskar Oil Engines Ltd.). 8. On the other hand, Mr.Surte, learned Counsel appearing on behalf of the respondent would submit that the concurrent orders do not raise any questions of law. In that regard, he would submit that the substantive order on the appeal of the Tribunal is clear. The Tribunal has held that the Assessment for the year 2001-02 is completed on 12.1.2006. The order of Assessment is communicated to the appellant on 22.2.2006. Initially the Joint Commissioner of Sales Tax revisited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (Provided further that, the period of limitation of five years shall not apply in a case where the point or points involved in the revision proceedings is the subject matter of any proceedings pending before the Tribunal, High Court or Supreme Court; and in such a case it shall be competent for the Commissioner to decide the revision proceedings within eighteen months from the date of notice of hearing served on the assessee after the conclusion of the proceedings in the Tribunal, High Court or, as the case may be, Supreme Court. (1A) Notwithstanding anything contained in this section or any other provisions of this Act, where the State Government of the Commissioner has initiated any proceedings before an appropriate forum, against a point which is decided against the State by judgment of the Tribunal, then the Commissioner may pass an order in revision or may issue a notice as provided in this section and pass an order in revision, as he thinks fit, as if the point was not so decided against the State, but shall stay the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover by the figure indicated in his order dated 28.8.2006. This was the power of revision which was exercised by the Joint Commissioner and when he made the order dated 28.8.2006, which resulted in increase in demand. 13. Though, it is true that this order was scrutinized by the Additional Commissioner of Sale Tax, Pune Division, Pune, but he formed an opinion that there is an impropriety allegedly committed in allowing G-I form. That was the transaction with M/s.Gharda Chemicals Ltd. and it is claimed that the Dealer enjoyed the exemption by virtue of exemption notification and, therefore, there was no requirement of paying any tax thereon. It is this exemption granted earlier which was sought to be withdrawn by the Additional Commissioner of Sales Tax and that is why he issued a notice in the Form No.40 dated 13.7.2009. He issued notice on the basis that the assessment merged in the revisional order dated 28.8.2006. 14. Precisely this exercise was interfered with by the Tribunal as it found that it had no legal sanction. The Tribunal found that the order of assessment has been already made and communicated on 22nd February,2006. That notice in the form No.40 dated 13.7.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as a fact there is no merger and further the notice is issued beyond three years from the date of communication of the assessment order which was sought to be revised. Once the revisional exercise was held to be barred by limitation and on the ground and for the reasons assigned hereinabove, we do not find that the reference application has been erroneously dealt with. The Tribunal reiterated this very principle. 16. For the judgment in the case of "Kirloskar Oil Engines Ltd." (supra) what has been found relevant thereunder was that the respondentdealer therein was assessed for the Assessment Year 1995-96 by the Assistant Commissioner of Sales Tax, Pune. This order passed on 31.3.1999 was communicated to the dealer on 21.4.1999. The assessment resulted in an order of refund. The order of the Assessing Officer was challenged by the dealer only on the ground relating to levy of interest and penalty. The Deputy Commissioner of Sales Tax allowed this appeal and set aside imposition of interest and penalty on 30.6.2000. This order was communicated to the dealer on 31.7.2000. The Additional Commissioner of Sales Tax by notice dated 27.8.2001 proposed to revise the order of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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