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TMI Blog2017 (5) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... its mind to the facts of the case of his own motion or on the information received. Once there is application of mind by the revisional authority for suo motu proceeding or on the basis of the information received and he decides to issue notice as contemplated in Rule 61 of the Chhattisgarh Valued Added Tax Rules, 2006, then the exercise of initiation is complete and initiation cannot be said to be made only when the notice is received under Rule 61 by the assessee - Once the proceeding is initiated by the revisional authority / Commissioner under Section 49 (3) of the Chhattisgarh VAT Act by applying its mind and he directs issuance of notice, then further duty imposed by the legislature under Section 49 (3) is to pass the order enhancing, modifying or cancelling the order of assessment within “one calendar year” from the date of initiation of the proceeding. It is settled law that if the statutory provision as to time is a condition for exercise of a statutory power as distinguished from a duty, the prescription as to time will be construed as mandatory. In the present case, it has already been held that the date of initiation of the proceeding would be the date on which the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h VAT Act by the Additional Commissioner by order dated 7-1-2013. Thereafter, revision petition was preferred by the petitioners under Section 49 (1) of the Chhattisgarh VAT Act and the liability was partly reduced by order dated 25-9-2013. Thereafter, under Section 49 (3) of the Chhattisgarh VAT Act, suo motu revision case was registered against the petitioners on 14-7-2015 and notices were issued to the petitioners for his appearance on 18-8-2015. Thereafter, again notice was issued under Rule 61 of the Chhattisgarh Value Added Tax Rules, 2006 for his appearance on 17-11-2016. The second pre-revision notice was challenged in W.P.(T)No.17/2017 but that writ petition was withdrawn on 8-2-2017, as, in between, on 28-11-2016, final order was passed in the revision under Section 49 (3) of the Chhattisgarh VAT Act. Finally, the petitioners have filed these writ petitions calling in question the order dated 28-11-2016 passed by the Additional Commissioner, Commercial Tax, Raipur as well as the notices issued for that revision (undated). 5. Mr. Siddharth Dubey, learned counsel appearing for the petitioners, would submit that the first pre-revision notice was issued on 14-7-2015 (Annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the parties, it would be appropriate to refer Section 49 (3) of the Chhattisgarh VAT Act which reads as under: - "Section 49 : Power of revision by Commissioner (3) The commissioner may on his own motion or on information received call for and examine the record of any proceeding under this Act if he considers that any order passed therein by any person appointed under section 3 to assist him including any officer to whom he has delegated his powers under subsection (1) is erroneous in so far as it is prejudicial to the interest of the revenue, and he may, after giving the dealer or person a reasonable opportunity of being heard, and after making or causing to be made such enquiry as he deems necessary, pass within one calendar year from the date of initiation of proceeding such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment or canceling the assessment and directing a fresh assessment: Provided that- (a) no proceeding shall be initiated under this subsection after the expiry of three calendar years from the date of the order sought to be revised; (b) no order shall be revised by the commissioner under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the filing of formal petitions to be acted on by the legislature or the total electorate. The power of the people to propose bills and laws, and to enact or reject them at the polls, independent of legislative assembly. Hughes v. Bryan, Okl., 425 P. 2d 952, 954. Not all state constitutions provide for initiative." 13. Thus, the word "initiation" of suo motu revision as stated in proviso (a) to Section 49 (3) of the Act, 2005 has a definite connotation. Initiation of revisional proceeding is the time when the revisional authority applies its mind to the facts / materials on record and decides to direct issuance of notice in accordance with Rule 61 of the Chhattisgarh Valued Added Tax Rules, 2006 proposing the proposed order and intimating the assessee his intention to take the proceeding in suo motu revisional proceeding. Proviso (a) to Section 49 (3) of the Act, 2005, is the condition precedent to exercise the power of revisional authority under that procedure. It merely contemplates initiation of proceeding by the revisional authority on its own or otherwise. The proceeding can be said to be initiated only when the revisional authority on its own motion or on the motion made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f mind by the revisional authority for suo motu proceeding or on the basis of the information received and he decides to issue notice as contemplated in Rule 61 of the Chhattisgarh Valued Added Tax Rules, 2006, then the exercise of initiation is complete and initiation cannot be said to be made only when the notice is received under Rule 61 by the assessee. 17. Once the proceeding is initiated by the revisional authority / Commissioner under Section 49 (3) of the Chhattisgarh VAT Act by applying its mind and he directs issuance of notice, then further duty imposed by the legislature under Section 49 (3) is to pass the order enhancing, modifying or cancelling the order of assessment within "one calendar year" from the date of initiation of the proceeding. 18. It is settled law that if the statutory provision as to time is a condition for exercise of a statutory power as distinguished from a duty, the prescription as to time will be construed as mandatory. (See Supdt. of Taxes, Dhubri and others v. M/s. Onkarmal Nathmal Trust (1976) 1 SCC 766.) 19. Section 49 (3) of the Chhattisgarh VAT Act confers suo motu revisional power to the Commissioner and the period of condition precedent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus panetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time. 13. So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order. Therefore Courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him on the date on which it was pronounced or published under such circumstances that the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expulsion of respondent 1 from the primary membership of the society after the expiry of a period of three months from October 6, 1982 i.e. the date of submission of the resolution. ..." 24. A Division Bench of the Gujarat High Court in the matter of M/s. S.K. Industries v. State of Gujarat (Special Civil Application No.8270/2015 decided on 2-9-2016) while considering the provisions of Section 67 of the Gujarat Sales Tax Act, which provides revision by the Commissioner of his own motion within three years or on application made to him within one year, and considering the revisional provision in which the Commissioner may pass an order within twelve months from the date of service of notice for revision has held that such a provision has been made by the Legislature in order to obviate the difficulties of the assessee and further, that such a provision has inserted that such order would have to be passed within 12 months from the date of service of notice of revision. It was further held that such a provision has been made in order to ensure exercise of suo motu 6 Special Civil Application No.8270/2015 decided on 2-9-2016 revisional powers by the Commissioner, does not remain o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be understood in its ordinary, dictionary meaning. It is, therefore, a period of 365 or 366 days, as the case may be, which begins from the 1st day of January and ends on the 31st day of December. The question, however, is how a calendar year should be computed from a day other than the 1st day of January. There is no prescribed method of calculating it in such a case. Therefore, the dictionary meaning has to be wholly incorporated in S. 11 (5) of the Sales Tax Act to determine the date when the three calendar years would expire. In this manner, the notice in question would be found to be within time under the amended section." 27. However, learned counsel for the petitioners would rely upon the Division Bench decision of the Orissa High Court in the matter of Kabita Barik v. State of Orissa and others (2007 (I) OLR - 186) in which the Orissa High Court relying upon the Concise Oxford English Dictionary has held that "calendar year" means year is completed of 365 days and the same may be from the 1st of January or the period of the same length, starting at a different point. It was observed as under in paragraph 17: - "17. In Concise Oxford English Dictionary, Tenth Edition Revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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