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TMI Blog2024 (2) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Act, 1956 (hereinafter referred to as 'CST Act, 1956'). 3. It appears that the return filed by the appellant for the Assessment Year 1991-92 was taken up in scrutiny and assessment proceedings were initiated, wherein the Assessing Authority by framing assessment, calculated an excess of Rs. 12,36,560/- under the HGST Act, 1973 and calculated a tax of Rs. 17,46,547/- under the CST Act, 1956, which was adjusted towards exemption limit. As per the appellant, the Assessing Authority had taxed the turnover at the rate of 3% instead of 2%, as provided under the Act. 4. The appellant filed a rectification application (Annexure A-2) on 20.06.1995 before the Assessing Authority for rectification of assessment order on the ground that the Assessing Authority had wrongly taxed the sale of wheat flour at the rate of 3% instead of 2%, as provided under the Act by virtue of Notification dated 28.09.1989 (Annexure A-3). The appellant claims that the Assessing Authority committed the same mistake for the Assessment Year 1990-91, for which the appellant submitted a rectification application. 5. It appears that the Deputy Excise and Taxation Commissioner, Ambala, initiated revisional procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), passed by the Revisional Authority by preferring appeals before the Tribunal below for assessments of the years 1990-91 and 1991-92. It is apposite to note here that since the appellant preferred appeals against the order of the Revisional Authority, accordingly, the appellant withdrew CWP-17526-2000 on 25.07.2001 (Annexure A-6). 7. The above referred both appeals filed by the appellant came to be allowed by the Tribunal below, vide its order dated 05.12.2001 (Annexure A-8), whereby the cases were remanded back to the Revisional Authority for passing appropriate order on merits. 8. Feeling aggrieved against the aforesaid order, the State filed a single review application for review of aforesaid order dated 05.12.2001 (Annexure A-8) in respect of assessments for the year 1990-91 and 1991-92. 9. Apparently, the review application was listed before a Bench of Two Members of the Tribunal below and while hearing the review application, one of the Members, constituting the Bench, took the view, vide order dated 31.08.2004 (Annexure A-10), that the review was not maintainable and the other Member took the view that the review was maintainable as there was a patent error in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted by his subordinate authority and the information may come from any source. It is submitted that the Revisional Authority had rightly initiated the revisional proceedings and no fault can be found with the same. With the aforesaid submissions, learned counsel for appellant prayed that the appeal be allowed and the impugned order dated 28.08.2017 (Annexure A-13) be set aside. 13. Per contra, learned State counsel has opposed the prayer made on behalf of appellant by submitting that the Tribunal below has duly considered all the submissions made by the appellant and passed a well-reasoned and justified order, which does not call for any interference by this Court. It is submitted that the Assessing Authority had passed the assessment order on 17.07.1992 (Annexur A-1) as regards Assessment Year 1991-92. Against the said assessment order, the appellant had a right of appeal, however, he failed to exercise his right of appeal. It is further submitted that in terms of Section 33 of HGST Act, 1973, an assessee could have filed an application for rectification of the assessment order within two years, however, even the said remedy was not availed of by the appellant within limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person unless such person has been given a reasonable opportunity of being heard. A perusal of Section 33 of HGST Act, 1973 would reveal that the same provides for rectification of clerical mistakes and errors. The Assessing Authority or any such authority, as may be prescribed, may rectify any clerical or arithmetical mistake apparent from the record, at any time, within two years from the date of any order, passed by him and subject to such conditions, as may be prescribed. Further, Section 40 of HGST Act, 1973, empowers the Commissioner to call on his own motion for the record of any case pending before, or disposed of, by any officer appointed under sub-section (1) of Section 3 of HGST Act, 1973 to assist him or any Assessing Authority or Appellate Authority, for the purposes of satisfying himself as to the legality or to propriety of any proceedings or of any order made therein and may pass such order in relation thereto, as he may think fit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions have to be given its true meaning. Plain reading of the language suggest that no order shall be revised after the expiry of a period of five years from the date of order. The only meaning which can be assigned to the language used is that the proceedings have to conclude with the passing of the order. It is not merely initiation of proceedings for revision. Second proviso to Section 40(1) of the Act enlarges the limitation, if the revision is a result of any decision of the Tribunal or Court. 10. To somewhat similar is the language used in Andhra Pradesh General Sales Tax Act. The relevant provisions of Sections 20(1) and 20(3) of the Andhra Pradesh General Sales Tax Act, are reproduced as under:- "(1) The Commissioner of Commercial Taxes may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section, and if such order or proceeding recorded is prejudicial to the interests of revenue, may make such enquiry, or cause such enquiry to be made and subject to the provisions of this Act, may initiate proceedings to revise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fest that in case the revisional proceedings are initiated by the Revisional Authority under Section 40 (1) of HGST Act, 1973, the same are required to be concluded within a period of five years from the date of the order sought to be revised and after the expiry of the said period of five years, the Revisional Authority does not have any jurisdiction to pass any order. Apparently, in the instant case, the Revisional Authority had initiated the revisional proceedings in respect of assessment order dated 17.07.1992 with regard to Assessment Year 1991-92, however, since revisional proceedings were not concluded within a period of five years i.e. upto 17.07.1997, the same were rightly dropped by the Revisional Authority, vide its order dated 20.03.2001 (Annexure A-5). 19. We have considered the contention of appellant that the Tribunal below has wrongly exercised its power of review as there was no error apparent on the record, however, we do not find any force in the same. The power to review was available with the Tribunal below in terms of Section 41 of HGST Act, 1973 and the errors apparent on the record have been culled out by the Tribunal below in its order dated 28.08.2017 (An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rference in appeal. The contention on behalf of the assessee-respondent that it should not suffer due to fault of Revisional Authority in not concluding the revisional proceedings expeditiously within limitation period, although apparently attractive, is completely devoid of merit. As already noticed above, the assessee had no right to invoke revisional powers under section 40 (1) of the HGST Act. Consequently the question of the assessee suffering loss due to non-conclusion of revisional proceedings within the limitation period by the Revisional Authority does not arise. On the other hand, it appears that the assessee indirectly managed to invoke revisional powers. The assessee had right of appeal to challenge the assessment orders. However, admittedly the assessee did not avail of the said right at all. The assessee also had right to file application for rectification of the assessment orders within two years under section 33 of the HGST Act. However, the assessee also did not avail of the said remedy within the limitation period. The assessee for the first time made application in the year 1995 (as submitted by State Representative) to the Assessing Authority regarding levyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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