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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 ..... ed in allowing G-I form – Principle could have been applied provided assessment order made originally had merged in revisional order after noticing that revisional order also deals with such exemption issue – Thus, notice was barred because order of assessment was sought to be revised and that was made prior to more than three years from issuance of notice dated 13.7.2009 – No perversity on part of Tribunal nor order passed can be termed as erroneous in law – Decided against revenue. - Sales Tax Application No. 23 of 2012 In Reference Application No. 29 of 2012 - - - Dated:- 28-7-2015 - S. C. Dharmadhikari And G. S. Kulkarni, JJ. For the Appellant : Mrs Anjali Helekar, AGP For the Respondent : Mr P V Surte with Mr Subodh P Surte i/b M/s P V Surte Co. ORDER P. C. 1. On the earlier occasion arguments were canvassed and the matter was placed for passing of orders today. On the earlier occasion a leave was sought to place before this Court some material in the form of hierarchy in the department of Sales Tax and to support the submission of the Revenue that it is open for the Commissioner to exercise his revisional powers even if the appellate order is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and issued a notice on 13.7.2009. A notice came to be issued by applying principle of merger inasmuch as the Additional Commissioner was of the opinion that the assessment merges in the revisional order dated 28.8.2006. The respondent appeared before the Additional Commissioner and objected to the revisional exercise on the ground that it is barred by limitation. The Additional Commissioner of Sales Tax (Vat) 1, Mumbai was incharge of this revisional proceeding and therefore, passed an order on 13.7.2011 holding that the assessment merged in the revision order and hence, the notice dated 13.7.2009 is within the limitation of three years. He withdrew the benefit of exemption and levied tax. That revision order a copy of which is at 'Annexure C' resulted in an appeal being preferred by the respondent to the Tribunal. The appeal of the respondent, thus, was allowed and the Revenue preferred an application before the Tribunal seeking reference of the questions of law formulated above. This application also came to be dismissed by the Tribunal. That is why the applicant has approached this Court. 7. We have heard Mrs.Helekar, learned Counsel appearing on behalf of the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances and when the decision of the Additional Commissioner of Sales Tax is beyond the period of five years from the date of communication of the assessment order and the proceedings are barred by limitation, is the ground on which the appeal has been allowed by the Tribunal. Mr.Surte would submit that such findings do not raise any question of law. He would, therefore, submit that the application be dismissed. 9. We have with the assistance of the learned Counsel appearing on behalf of both sides, perused the application and all annexures thereto. The whole object of conferring revisional power is that there are certain non appealable orders under Section 56 of the Bombay Sales Tax Act, 1959. These matters and orders are set out in Section 56. By Section 57 power of revision is conferred and it is subject to the provisions of Section 56 and to any Rules which may be made in this behalf. The relevant part of the provisions read as under: S.57. Revision (1) Subject to the provisions of section 56 and to any rules which may be made in this behalf,( a) the Commissioner may, of his own motion, call for and examine the record of any order passed (including an order passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by the Tribunal throughout on the issue of applicability of principle of merger and period of limitation within which the power has to be exercised by the Commissioner. We, therefore, refrain from expressing any opinion on the issue as to whether the orders passed by the Joint Commissioner of Sales Tax are capable of being revised on a notice addressed by the Additional Commissioner and whether that satisfies the requirement of the suo motu exercise of power of revision by the Commissioner when an order is made in an appeal or revision by the officer subordinate to him. In other words, whether the Additional Commissioner could have invoked this power and revised the order of a Joint Commissioner and whether the Joint Commissioner can be said to be subordinate to him, are questions which need not be decided in the facts of the present application. They are kept open for being decided in an appropriate case. We merely take on record the table setting out the hierarchy of the officers in the Department but express no opinion thereon. 12. As far as the principle of merger is concerned, that was clearly inapplicable in this case. It was concurrently observed that the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 form. This was altogether a new aspect and for that to be taken into account the principle of merger will not save the bar of limitation. The principle could have been applied provided the assessment order made originally had merged in the revisional order after noticing that the revisional order also deals with such exemption issue. That having not been part of that order but sought to be dealt with by issuing revisional notice and further on 13.7.2009 that the Tribunal found that the period of three years having expired or lapsed, the notice itself could not have been issued. That notice was barred because the order of assessment was sought to be revised and that was made prior to more than three years from issuance of notice dated 13.7.2009. 15. On such a factual finding, we do not see how the questions of law would arise. Eventually, the plea of limitation and raised was decided by taking into account the admitted facts. It was also found that the issue of merger as raised also is a mixed issue. Unless the relevant orders and issues dealt with thereunder are pointed out, these principles cannot be applied in abstract or academically as a matter of course. Even, we would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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