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TMI Blog2015 (4) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... n and steel. During the course of the trade, the appellant had purchased various raw materials and consumables for the purpose of manufacture of the said finished goods. The appellant was assessed by the Commercial Tax Officer ("the CTO", for short) for the assessment year 1992-93 under the APGST Act vide order dated March 24, 1994. According to the appellant, they being the steel re-rollers, are eligible for set-off of tax paid on raw materials from the tax payable on the finished product as per the terms of the G. O. Ms. No. 763 Revenue (CT-II) Department, dated August 21, 1990. The Deputy Commissioner, who had examined the assessment record of the CTO was of the view that the assessing authority had acted in a manner prejudicial to the interests of the Revenue of the State and had, therefore, proposed to restrict the set-off of tax by withdrawing the excess set-off of Rs. 4,73,946. Accordingly, a show-cause notice was issued by the Deputy Commissioner; and, finally the Deputy Commissioner by his order dated March 7, 1996 had allowed a set-off of Rs. 58,92,050 as against the set-off of Rs. 61,39,374 granted by the CTO. The Commissioner having examined the said revision order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would contend as follows: The order of the Commissioner revising the revisional order of the Deputy Commissioner is not legally correct and the revisional order of the Commissioner revising the assessment order for a second time is not justifiable and valid. The Commissioner was not within his powers in revising the order of the Deputy Commissioner in respect of an issue which has not been decided and dealt with by the Deputy Commissioner. Therefore, the Commissioner is not justified in levying tax under section 6A of the Act. In any view of the matter, the levy of tax under section 6A of the Act is not justified and correct as the appellant has purchased the goods from registered dealers within the State. In the present case, the order of the CTO is dated March 24, 1994 and the order of the Deputy Commissioner in the first revision is dated March 7, 1996 and that admittedly the respondent had issued the show-cause notice proposing revision under sub-section (1) of section 20 on May 3, 1999, i.e., after about five years from the date of order of assessment and that therefore, the initiation of proposal for revision by the respondent and the impugned order passed by the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deputy Commissioner was prejudicial to the interests of the Revenue of the State had decided to revise the said order of the Deputy Commissioner and, therefore, had issued a show-cause notice dated May 3, 1999 proposing certain turnovers to be taxed under section 6A of the Act. Indubitably, the Commissioner had issued a show cause notice on May 3, 1999 proposing to revise the orders of the Deputy Commissioner. The impugned orders were passed by the Commissioner on February 29, 2000 revising the revisional order passed by the Deputy Commissioner on March 7, 1996. 8.2 The first aspect to be considered is-whether the respondent had merely revised the orders of the Deputy Commissioner or in-fact he had revised the orders of the CTO under the guise of revising the orders of the Deputy Commissioner ? The contention of the learned counsel for the appellant is that the order of the Deputy Commissioner insofar as the proposal to levy tax under section 6A is silent and that, therefore, there was no adjudication on this issue by the Deputy Commissioner and that therefore, the proposal to revise the order of the Deputy Commissioner on an issue which was not adjudicated is impermissible and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue and, therefore, it is to be held that the said issue was not adjudicated or the proceedings on the said issue were dropped after considering the facts and contentions, which were relevant. In the said circumstances, the Commissioner who was of the view that the order of the Deputy Commissioner is prejudicial to the interests of the revenue of the State had entertained a revision suo motu by exercising powers vested in him under section 20(1) of the Act. The powers of revision, in our well considered view, can be invoked in respect of a subject-matter which is not adjudicated by the Deputy Commissioner. Therefore, it cannot be said that the Commissioner had in fact revised the orders of the CTO under the guise of revising the orders of the Deputy Commissioner. Therefore, it follows that the Commissioner had only revised the orders of the Deputy Commissioner. 8.4 The next contention which falls for consideration is that the revision entertained by the Commissioner is a second revision of the same assessment order and that, therefore, the same is bad in law. The substance of the contention is that since the Deputy Commissioner did not adjudicate the present issue and as the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation falls for determination. The contention of the learned counsel for the appellant on this aspect is as follows:-"In the present case, the order of the CTO is dated March 24, 1994 and the order of the Deputy Commissioner in the first revision is dated March 7, 1996 and that admittedly the Commissioner had issued the show-cause notice proposing revision under sub-section (1) of section 20 on May 3, 1999, i.e., after about five years from the date of order of assessment and that therefore, the initiation of proposal for revision by the respondent and the impugned order passed by the respondent are clearly barred by law of limitation prescribed in sub-section (3) of section 20 of the Act. Section 20(3) of the Act reads as under: 'In relation to an order of assessment passed under this Act, the powers conferred by sub-sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed'." 8.6 Keeping in view the facts of the instant case and also the provision of law, it is necessary to refer to the ratios in the precedents cited before us. (i) In State of Andhra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and had later passed an order on April 15, 1985 confirming the proposal in the show-cause notice. Therefore, the Tribunal had held that the exercise of powers by the Deputy Commissioner was barred by limitation as the Deputy Commissioner has passed the order after expiry of four years from the date of order of the assessment by the assessing authority. The said orders were confirmed by this court. (ii) In Hyderabad Wire & Allied Products v. Commissioner of Commercial Taxes, A. P., Hyderabad [1999] 115 STC 286 (AP), a batch of appeals were preferred by the assessee assailing the orders dated July 31, 1998 passed by the Commissioner in exercise of power of revision vested in him under section 20(1) of the APGST Act. The facts of the case are as follows:-"The Commissioner by his orders dated July 31, 1998 had set aside the orders of the Appellate Deputy Commissioner (D.T.) and had restored the orders of the assessing authority. The Commissioner had thus passed the order of revision on July 31, 1998, which admittedly went beyond the period of four years from the date of service of appellate order. To get over the said difficulty the learned Government Pleader argued that the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed provisional assessment order dated February 23, 2001 disallowing the claim for exemption on entire turnover pertaining to a three months' period in respect of transactions claimed by the appellant as 'consignment sales'. The appellant/assessee's appeal was disposed of by the Appellate Deputy Commissioner by an order dated June 14, 2001. Thereupon, the Deputy Commissioner (CT), Abids, took up the assessment of the appellant under the CST Act for the year 2000-01 and passed orders dated March 15, 2003. The Additional Commissioner (CT) vide notice dated October 28, 2006 had proposed to revise the order dated March 15, 2003 of the Deputy Commissioner (CT) Abids Division in exercise of powers under section 20(3) of the Act read with section 9(2) of the CST Act. The said Additional Commissioner passed orders dated February 28, 2007. The Commissioner/respondent had passed final revision orders on July 13, 2010. A question whether the respondent is merely revising the order dated February 28, 2007 passed by the Additional Commissioner (CT) Legal or he is in fact revising the order dated March 15, 2003 of the Deputy Commissioner (C. T.), Abids fell for consideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CTO on the dealer. However, the initiation of proposal for revision as well as the passing of the revisional order shall be completed within the prescribed period of limitation of four years commencing from the date of such service of the CTO's order. Similarly, when the Commissioner is exercising the powers of revision vested in him under section 20(1) of the Act and is revising any order passed or proceeding recorded by any authority, officer or person subordinate to him, under the provisions of the APGST Act, including sub-section (2) of section 20, the Commissioner may initiate proceedings and pass revisional orders within the prescribed period of limitation of four years from the date of service of the order of the subordinate, under revision, on the dealer. 8.8 This being the legal position, in the case on hand, the facts show that the Commissioner had initiated the revision proceedings by a show cause notice dated May 3, 1999 proposing to revise the order dated March 7, 1996 of the Deputy Commissioner (CT) Panjagutta Division. Further, the Commissioner had passed revisional orders admittedly on February 29, 2000, i.e., within the period of four years from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an opportunity to the appellant/dealer to produce necessary and relevant records. Viewed thus, we find that the matter needs to be remitted to the respondent/Commissioner for fresh consideration on merits in regard to the subjection of the turnovers to tax at applicable rates under section 6A after affording an opportunity to the appellant/dealer to produce necessary and relevant records in support of the contention that the said turnovers are not exigible to tax. In the result, the appeal is allowed and the order impugned insofar as it related to bringing the turnovers of fuel, coal and miscellaneous goods to tax at the applicable rates under section 6A of the APGST Act for the year 1992-93 is set aside and the matter is remitted to the Commissioner of Commercial Taxes concerned for fresh consideration of the said issue on merits after affording an opportunity to the appellant/dealer to produce necessary and relevant records and for passing appropriate orders in accordance with the procedure established by law. We direct that the Commissioner shall pass final orders in the matter as expeditiously as possible, preferably within a period of four months from the date of the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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