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TMI Blog2017 (5) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Act that it was only under section 39(7) that the State has the power to file an appeal against the orders of the revisional authority and since the order appealed against was not passed by the revisional authority the State has no right to file an appeal against the order of the JETC. The mere existence of a power of revision under section 40 does not imply that there is no right of appeal. Further, merely because there is a right of appeal under section 39(7) against an order passed in revision under section 40(2), it does not follow that the State does not have a right of appeal under section 39(2) - petition allowed - decided in favor of petitioner. - Civil Writ Petition No.6175 of 2010 (O&M) - - - Dated:- 8-5-2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the JETC which was disposed of by the impugned order dated 12.08.2005. It was held that the appeal was not maintainable. The petitioner filed an application for review under section 41 of the Act against the order dated 12.08.2005. This application was also dismissed by the impugned order dated 30.11.2007. 4. Sections 39 and 40 of the Act read as under:- CHAPTER VII APPEAL, REVISION, REVIEW AND REFUND SECTION-39 [ APPEAL] (1) An appeal from every original order, including an order under Section 40, passed under this Act or the rules made thereunder shall lie;- (a) if the order is made by an assessing authority, officer incharge of a check-post or barrier or an officer below the rank of a De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of tax assessed and the penalty and interest, if any, recoverable from the person has been paid; Provided that the said authority, if satisfied that the person is unable to pay the whole of the amount of tax assessed, or the penalty imposed, or the interest due, he may, if the amount of tax and interest admitted by the appellant to be due has been paid, for reasons to be recorded in writing, entertain the appeal and may stay the recovery of the balance amount subject to the furnishing of a bank guarantee or adequate security in the prescribed manner to the satisfaction of the appellate authority. Provided further that in the case of an appeal against any order which has to be communicated by the appropriate authority to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that no order shall be so revised after the expiry of a period of five years from the date of the order: Provided further that the aforesaid limitation of period shall not apply where the order in a similar case is revised as a result of the decision of the Tribunal or any Court of law: Provided further that the assessee or any other person shall have no right to invoke the revisional powers under this sub-section. 2. The State Government may by notification, confer on any other officer the powers of the Commissioner under sub-section(1) to be exercised subject to such conditions and in respect of such areas as may be specified in the notification. 3. No order shall be passed under this section which adversely affects any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly under section 39(7) that the State has the power to file an appeal against the orders of the revisional authority and since the order appealed against was not passed by the revisional authority the State has no right to file an appeal against the order of the JETC. 7. We are unable to agree with the line of reasoning adopted in both the orders of the Tribunal. Section 40(1) confers upon the Commissioner the power of revision. The Commissioner is entitled on his own to call for the record of any case pending before or disposed of by the officers mentioned therein or by any assessing authority or appellate authority other than the Tribunal. That, however, is a separate and independent power from the right of appeal conferred by section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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