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K.S. Nazar Ali Mills Ltd. Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Case No. 39 of 1955 and Civil Ref. No. 9 of 1956
Judge
Reported inAIR1958MP282; [1959]10STC117(MP)
ActsMadhya Bharat Sales-tax Act, 1950 - Sections 11, 12(2) and 13; Madhya Bharat Sales-tax (Amendment) Act, 1955; Code of Civil Procedure (CPC) , 1908 - Sections 96 and 115
AppellantK.S. Nazar Ali Mills Ltd.
RespondentCommissioner of Sales Tax
Appellant AdvocateR.G. Waghmare, ;S.P. Bhargava and ;S.M. Jhanvar, Advs.
Respondent AdvocateR.R. Sharma, Government Adv.
Cases ReferredJulius v. Bishop of Oxford
Excerpt:
.....made by a dealer for revision of an order under the act passed in assessment proceedings initiated before 15-4-1955. the imposition of the condition of the payment of entire assessed tax as a condition precedent to the entertain ability of a revision petition cannot affect the dealer's right of revision from an order in assessment proceedings which commenced prior to the insertion of the third proviso to section 12 (2) which right was free from any such restrictions under the section as it stood at the time of the commencement of assessment proc.....facts, however, can be very shortly stated. section 11 of the madhya bharat sales tax act gives a right of appeal to an assessee against any assessment or order of refund or penalty to the prescribed authority.it also prescribed the form in which an appeal is to be preferred, the procedure for its hearing, limitation for filing an appeal, the powers of the appellate authority and inter alia says that every order passed in appeal under the section shall, 'subject to the powers of revision conferred by section 12 of the act and of reference made to high court under section 13 shall be final'. the next section (section 12) deals with the revisional powers of the commissioner of sales tax. it runs as follows:'(1) the commissioner may in his discretion at any time suo motu or being moved by.....
Judgment:
ORDER

P.V. Dixit, J.

1. This reference under Section 13(1) of the Madhya Bharat Sales Tax Act, 1950, has come up before me for hearing on a difference of opinion having arisen between my learned brothers Newaskart., and Samvatsar J., who first heard the reference, The facts and circumstances in which the reference has been made, have been stated in the opinion expressed by my learned brothers. It is not necessary for me to repeat all these facts & circumstances. The relevant facts, however, can be very shortly stated. Section 11 of the Madhya Bharat Sales Tax Act gives a right of appeal to an assessee against any assessment or order of refund or penalty to the prescribed authority.

It also prescribed the form in which an appeal is to be preferred, the procedure for its hearing, limitation for filing an appeal, the powers of the appellate authority and inter alia says that every order passed in appeal under the Section shall, 'subject to the powers of revision conferred by Section 12 of the Act and of reference made to High Court under Section 13 shall be final'. The next Section (Section 12) deals with the revisional powers of the Commissioner of Sales Tax. It runs as follows:

'(1) The Commissioner may in his discretion at any time suo motu or being moved by the assessing authority, call for and examine the records of any proceedings under this Act and if he considers any order is illegal or improper or erroneous in so far as it is prejudicial to the interests of the revenue he may pass orders as he thinks fit:

Provided that no order shall be passed prejudicial to a dealer without giving him an opportunity of hearing:

Provided further that the Commissioner shall not revise an order which has been made more than two years previously. (2). The Commissioner may on application for revision of an order by a dealer under this Act made within six months of the date of the order, call for the record of the proceedings in which the order complained against was passed an3 after examining the record, subject to the provisions of this Act, pass such order not prejudicial to the assessee, as he thinks fit:

Provided that an order declining to interfere shall be deemed not prejudicial to the assessee:

Provided 'secondly' that no revision shall lie if there is time for filing an appeal or if an appeal is pending before the appellate authority: 'Provided still further that no application shall be .entertained under this sub-Section unless it is accompanied by a satisfactory proof of the Payment of full tax determined in respect o which the revision has been preferred'.

This Section, as originally enacted, did not contain the third proviso to sub-Section (2). It 'was inserted by the Madhya Bharat Sales Tax (Fifth Amendment) Act 1955 which came into force on 15-4-1955. The petitioning Mills, who were assessed to sales tax, did not appeal against the assessment. They, however, filed a revision petition on 23-4-1955. It was not accompanied by any proof of the payment of full tax determined in respect of which the revision petition had been preferred. The Commissioner, therefore, refused to consider and entertain the revision petition.

2. Before the Commissioner of Sales Tax, the assessee contended that under Section 12 of the Act as it stood at the time of the commencement of the assessment proceedings, he could file a revision petition without paying the amount of the tax assessed on him; that this right vested in him when the assessment proceedings were initiated; that this vested right could not be taken away except by express enactment or necessary intendment; and that the amendment of Section 12 making a substantial restriction on the assessce's right of revision requiring a payment of the entire assessed amount as a condition precedent to the entertain ability of the revision petition could not affect his right of revision from a decision in the proceedings which commenced prior to the amendment of Section 12. On these contentions and at the instance of the assessee, the Commissioner of Sales Tax referred four questions to this Court for expression of opinion. One of the questions referred was, however, not pressed before the Division Bench. The remaining three questions referred by the Commissioner of Sales Tax are as under:

1. Whether the Commissioner of Sales Tax by refusing to entertain the revision application without prepayment of tax assessed, has refused to exercise jurisdiction conferred upon him under Section 12 of the Sales Tax Act of Samvat 2007?

2. Whether Section 12 of the Sales Tax Act before the Amendment Act of Sales Tax Act conferred on the petitioner a right to file a revision application without depositing an assessed amount of tax and if so, at what stage of the case such right accrues and whether such right is deemed to be taken away by die added proviso to Section 12 of the Sales Tax Act as per amendment above?

3. Whether the amendment though coming into force after the assessment of the case governs the revision application in respect of such assessment, but submitted after such amendment came into force and if so, whether by virtue of such amendment a condition of prepayment of tax assessed can be imposed precedent to the entertainment of such revision.

According to the learned Judges, who first heard this reference, all these questions overlapped each other, but the main issue raised in the reference was whether Section 12 conferred on an assessee a right of revision akin to a right of appeal vesting in the as-sessee on the date o the commencement of the assessment proceedings. Nevaskar J. took the view that Section 12 conferred a right of revision on the assessee and that this right vested in him at the time of the initiation of the assessment proceedings and was not affected by the amendment in Section 12 of the Act, and further that in the present case the assessee had a legal right to have his petition for revision heard by the Commissioner without payment of tax as required by the third proviso to Section 12(2) of the Act. Samvatsar J. was of the opinion that Section 12 merely conferred the power of revision on the Commissioner and did not confer on the assessee any right to a general relief.

3. Before me, learned counsel appearing for the parties repeated the arguments that had been advanced before the Division Bench. I am inclined to agree with the conclusion reached by Nevaskar J. My reasons are, However, different. I cannot help thinking that some confusion has been caused throughout the history of the controversy by emphasis on the nature and scope of the revisional powers of the Commissioner under Section 12 of the Act.' To my mind, the precise issue raised in the reference is not whether an assessee has a right to claim to have an order made against him set aside or varied to his advantage in a revision petition as if the petition were an appeal and in the same manner and on the same grounds as in an appeal under Section 11.

The precise question that arises in this reference is whether the right given to the dealer by Section 12(2) of moving the Commissioner to exercise his revisional power in respect of an order made against him is a vested right accruing to him on the date of the initiation of assessment proceedings. On a consideration of the language of Section 12, there can be no doubt that it is a provision conferring the power of revision on the Commissioner and not a provision affording a claim to relief either to the assessee or to the assessing authority. We are not concerned with sub-Section (1) of Section 12 which vested the Commissioner with the power of revising suo motu or at the instance of the assessing authority any order which is prejudicial to the interests of the revenue.

The material sub-Section is Sub-section (2) which deals with the grant of relief to the assessee by the Commissioner in the exercise of his revisional power under that sub-section. It ft important to note that under this sub-section the Commissioner can exercise his revisional power only when moved by the dealer. The Commissioner's power of revision is subject to the conditions that (i) the revisional power cannot be exercised till the time within which an appeal can be filed expires or if an appeal has been made before the appellate authority, it is pending; and (ii) the Commissioner has no power to pass an order prejudicial to the assessee. The Commissioner's re-visional jurisdiction is subject to the provisions of the Act.

But it is within his discretion to grant or refuse relief and pass such order in revision as he may think fit. It is not necessary to consider whether the power of revision conferred on the Commissioner is as wide as and indistinguishable from the appellate powers under Sec. 11 and whether the principle discussed in Julius v. Bishop of Oxford, (1880) 5 A.C. 2I'4 (A) could be invoked to say that Section 12(2) imposed on the Commissioner a duty of correcting theorder if it was not in accordance with law, which duty he was bound to perform upon an application of the dealer. But it must be said that when Section 11 expressly gives a right of appeal to a dealer, when the finality conferred on an order passed in appeal is subject' to the power of revision conferred upon the Commissioner under Section 12 and on the High Court under Section 13, it would be wholly incompatible to say that the discretionary revisional jurisdiction of the Commissioner under Section 12 (2) which is subject to certain limitations introduces an alternative category of remedy akin to and competitive with the remedy o an appeal under Section 11.

The words 'may on application for revision of an order by a dealer', when read in the context of Section 12(2) only, do not provide anything more than a procedure for invoking the revisional jurisdiction of the Commissioner. If the matter has stood on Section 12(2) alone, then the dealer could not have clearly claimed that he had a vested right in the procedure for invoking the discretionary revisional jurisdiction of the Commissioner. But it does not rest there and the position becomes different because of the provisions of Section 13 of the Act. This Section provides:

'(1) Within sixty days from the passing by the Commissioner of any order under Section 12 affecting any liability of any dealer to pay tax under this Act, such dealer may, by application in writing ac-companied by a fee of one hundred rupees, require the Commissioner to refer to the High Court any question of law arising out of such order.

(2) If, for reasons to be recorded in writing, the Commissioner refused to make such reference the applicant may, within sixty days of such refusal, either:

(a) withdraw his application (and if he does so, the fee shall be refunded); or

(b) apply to the High Court against such refusal.

(3) To upon the receipt of an application under clause (b) of sub-Section (2), the High Court is not satisfied that such refusal was justified, it may require the Commissioner to state a case and refer it to the High Court and on receipt of such requisition the Commissioner shall state and refer the case accordingly. ..... ..... ..... .....'

This is the only provision in the Act about reference on a question of law to the High Court. It will be seen that a reference lies only in respect of any question of law arising out of an order made by the Commissioner under Section 12. Unless there is an order under Section 12, there can be no reference. A dealer who desires to have his case stated and referred to the High Court may apply to the Commissioner under Section 13 (1). If the Commissioner refuses to make a reference, the dealer can apply to the High Court under Section 13 (2)(b) and (3) for an order requiring the Commissioner to state and refer the case. It is thus plain that unless the dealer moves the Commissioner under Section 12 (2) and obtains an order from him, even if it be one of declining to interfere, he cannot exercise his right of having his case referred to the High Court on questions of law. Thus the assessment proceedings, an appeal under Section 11 and or a revision under Section 12(2) and a reference under Section 13 are all inter-connected steps in one legal proceeding.

Now, it cannot be denied that the right of a reference to the High Court is not a mere matter of procedure but is a substantive. right which vested in the dealer under the law prevailing at the date of the initiation of assessment I proceedings. This involves the consequence that the procedure under Section 12(2) of moving, the Commissioner to exercise his revisional power really concerns the substantive right of the dealer to take the matter to the High Court, albeit on questions of law,.! which inhered in him from the commencement of' the assessment proceedings.

4. On this view and on the application of the well-established rule of interpretation giving prospective operation to statutes taking away or impairing a vested right acquired under the existing law when the retrospective intention is not manifest by express words or necessary implication, it must be held that the third proviso to Section 12(2) which was inserted in 1955 and became operative from 15-4-1955, cannot apply to an application made by a dealer for revision of an order under the Act passed in assessment proceedings initiated before 15-4-1955.

The imposition of the condition of the payment of entire assessed tax as a condition precedent to the entertain ability of a revision petition cannot affect the dealer's right of revision from an order in assessment proceedings which commenced prior to the insertion of the third proviso to Section 12 (2) which right was free from any such restrictions under the Section as it stood at the time of the commencement of assessment proceedings. The case of Hoosein Kasam Dada (India) Ltd., v. The State of Madhya Pradesh, AIR 1953 SC 221(B) presents a very close analogy.

That was a case in which the Supreme Court considered the question whether an amendment made,in the proviso to Section 22(1) of the C. P. & Berar Sales. Tax Act 1947 was retrospective in operation. Section 22(1) of the Act, as originally enacted, gave to a dealer a right of appeal against an order under the Act & further provided that no appeal shall be entertained unless the assessee had paid such amount of tax as he might admit to be due from him. The proviso to Section 22 (1) dealing with the condition of the entertain ability of an appeal was later on so amended as to make the payment of the entire assessed tax as a condition precedent to the admission of the appeal.

The Supreme Court held that the amendment imposing a restriction as to the payment of the entire assessed tax as a condition precedent to the admission of an appeal could not affect the assessee's right of appeal from a decision in assessment proceedings which commenced before the amendment and which right of appeal was free from any such restriction under Section 22(1) as it stood at the time of the initiation of the assessment proceedings. If, therefore, as I think in this case the right of the dealer to move the Commissioner under Section 12(2) of the Madhya Bharat Sales Tax Act to exercise his revisional jurisdiction is a vested right accruing to him when the assessment proceedings are first initiated, then it must be held on the authority of (AIR 1953 SC 221) (B) that the revision petition filed by the dealer Messrs. K. S . Nazar Ali Mills Ltd., is governed by Section 12(2) as it stood when the assessment Proceedings against the petitioner were started.

5. In the view I have taken of the matter, itis not necessary to discuss the other cases referred to in the opinions recorded by my learned brothers. All those cases arc distinguishable on the ground that they deal with the question of the nature and scope of the discretionary revisional jurisdiction conferred on an authority and with the question whether there was a duty imposed on that authority to exercise the revisional jurisdiction upon an application of an aggrieved person. As I have said that is not the question for determination here.

6. For the foregoing reasons, I agree with theconclusion reached by Nevaskar J. though not within reasoning that the Commissioner of Sales Taxwas not right in refusing to entertain the revisionpetition filed by the petitioner on the ground that itwas not accompanied by a satisfactory proof of thepayment of the full amount of tax determined inrespect of which the revision petition had beenpreferred. I would, therefore, answer the first twoquestions in the affirmative and the third questionin the negative.


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