1. At the instance of the Commissioner of Sales Tax, Madhya Pradesh, the Tribunal (Board of Revenue) has referred to this Court under Section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958, read with Section 23 of the Central Provinces and Berar Sales Tax Act, 1947, the following questions of law :
(i) Whether the revisional jurisdiction vested in the Commissioner of Sales Tax under Section 22-B of the Central Provinces and Berar Sales Tax Act, 1947, extends to orders passed in appeal under Section 22 of that Act ?
(ii) Whether an authority prescribed under Section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947, read with Rule 53 of the rules thereunder, is a person appointed under Section 3 of that Act to assist the Commissioner of Sales Tax ?
2. The relevant facts, as disclosed in the statement of the case, are these. On 22nd May, 1954, the Assistant Sales Tax Officer, Raipur, assessed to tax under Section 11(5) of the Central Provinces and Berar Sales Tax Act, 1947, (hereinafter called the Act), the sales made by the non-applicant during the period nth February, 1948, to 30th May, 1950. The non-applicant filed an appeal under Section 22(1) of the Act to the Appellate Assistant Commissioner who, on 22nd November, 1957, set aside the assessment on the ground that it was made beyond time. Thereupon, the Commissioner decided to revise the order under Section 22-B of the Act and issued a notice to the non-applicant in October, 1959. Subsequently, by an order dated 27th November, 1959, the Commissioner set aside the appellate order and directed that a fresh assessment be made on the basis that the non-applicant had to be deemed to be a registered dealer. Being aggrieved by that order, the non-applicant preferred under Section 22-B (3) of the Act an appeal to the Tribunal which, by its order dated 8th August, 1961, allowed that appeal and set aside the Commissioner's order on the view that there could be no revision under Section 22-B of the Act of an order passed in appeal under Section 22(1) of the Act.
3. The relevant provisions, which have a bearing on the questions referred to us are sections 3, 22, 22-A and 22-B of the Act which are reproduced:
3. (1) The State Government may appoint any person to be a Commissioner of Sales Tax, and such other persons under any prescribed designations to assist him as it thinks fit.
(2) Persons appointed under Sub-section (1) shall, within such areas as the State Government may specify, exercise such powers as may be conferred and perform such duties as may be imposed, by or under this Act.
(3) All persons appointed under Sub-section (1) shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.
22. (1) Any dealer aggrieved by an original order under this Act may, in the prescribed manner, appeal to the prescribed authority against such order and any dealer aggrieved by an order passed in appeal under this Act may appeal to such authority as may be prescribed against the order passed by the first appellate authority :
Provided that no first or second appeal against an order of assessment with or without penalty shall be admitted by the appellate authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred.
(2) Notwithstanding anything contained in the proviso to Sub-section (1), the appellate authority may in its discretion allow time to the dealer to pay the whole or part of the amount of tax or penalty or both and if the amount is paid within such time, the appeal shall be admitted.
(3) Every first or second appeal shall be filed within thirty days from the date of the communication of the order against which the appeal is to be filed.
(4) Subject to such procedure as may be prescribed and after such further enquiry as it may think fit, the appellate authority, in disposing of any appeal under Sub-section (1), may-
(a) confirm, reduce, enhance or annul the assessment, or
(b) set aside the assessment or penalty, or both, and direct the Commissioner or the person appointed under Section 3 to assist the Commissioner to make a fresh assessment after such further inquiry as may be directed, or
(c) in other cases, pass such orders as it may think fit.
(5) Every order passed in first appeal or second appeal under this section shall, subject to the provisions of this section, Section 22-A or Section 23, as the case may be, be final.
(6) Subject to rules made under this Act, any person appointed under Section 3 may review any order passed by him and likewise the second appellate authority may review any order passed by it.
(7) The Tribunal may, on application by a dealer for revision of an order passed under this Act by the second appellate authority made within sixty days from the date of communication of the order, revise the order, if it appears to the Tribunal that the order passed by the second appellate authority is contrary to law.
22-A. (1) The Commissioner may of his own motion call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him and may make such inquiry or cause such inquiry to be made, and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the dealer, as he thinks fit:
Provided that the Commissioner shall not revise any order under this sub-section if,-
(a) where an appeal against the order lies to an authority prescribed under Sub-section (1) of Section 22, the time within which such appeal may be made has not expired ; or
(b) the order is pending on an appeal before the authority prescribed under Sub-section (1) of Section 22 or has been made the subject of a revision to the Tribunal;
(c) the order has been made more than one year previously.
(2) The Commissioner may, on application by a dealer for revision of an order under this Act passed by any authority subordinate to the Commissioner made within one year from the date of the order, call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the dealer, as he thinks fit:
Provided that the Commissioner shall not revise any order under this sub-section, if-
(a) where an appeal against the order lies to the authority prescribed under Sub-section (1) of Section 22 but has not been made, the time within which such appeal may be made has not expired, or in the case of a revision to the Tribunal the dealer has not waived his right of revision; or
(b) where an appeal against the order has been made to the authority prescribed under Sub-section (1) of Section 22, the appeal is pending before such authority ; or
(c) the order has been made the subject of a revision to the Tribunal:
Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the dealer.
22-B. (1) The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by any person appointed under Section 3 to assist him is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the dealer an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.
(2) No order shall be made under Sub-section (1) after the expiry of two years from the date of the order sought to be revised.
(3) Any dealer objecting to an order passed by the Commissioner under Sub-section (1) may appeal to the Tribunal within sixty days of the date on which the order is communicated to him.
4. In our opinion, so far as the first question is concerned, the most significant provision is Sub-section (5) of Section 22 of the Act which declares that every order passed in first appeal or second appeal under that section shall be final subject to-
(i) that section which provides for review by the assessing or appellate authority, a second appeal and a revision by the Tribunal of any order passed in second appeal;
(ii) Section 22-A, which provides for revision by the Commissioner ; and
(iii) Section 23, which provides for reference to this Court.
5. When the finality of an order passed in first appeal is made subject not only to an order passed in second appeal, but also to orders that might be passed in review, revision and reference, it is idle to contend that the finality has reference only to further appeal and not to a revision under Section 22-B of the Act. We are also unable to accept the argument that such an order is final only against the assessee and that the finality does not preclude the Commissioner from exercising his powers under Section 22-B of the Act. In our opinion, when an order is declared to be final subject to enumerated exceptions, the principle of the maxim expressio unius est exclusio alterius applies. The express mention of a thing excludes things which are not mentioned. Since the finality of any order passed in first appeal is not made subject to an order that might be passed under Section 22-B of the Act, we are of the view that it cannot be revised thereunder.
6. It is urged that, since the department has no right of appeal, Section 22-B of the Act was enacted to authorise, in the interests of the revenue, interference with orders passed by the persons appointed under Section 3 of the Act at different stages, including the appellate stage. All that we need say about this is that this intention cannot be spelled out from the expressed language of Section 22(5) of the Act. On the other hand, such an intention is further contra-indicated by the absence in Section 22-B of the Act the precautions enacted in Section 22-A of that Act against interference in revision when an appeal could be, or has been, filed. We are of opinion that the powers under Section 22-B could be exercised only against orders passed by the assessing authorities in cases in which no appeal is filed. Once an appeal is filed, orders prejudicial to the revenue are intended to be corrected in appeal and the appellate authorities have been duly empowered in that behalf.
7. In regard to the second question, we think that the view taken by the Tribunal is correct. While Section 3 of the Act speaks of the appointment of 'other persons under any prescribed designations to assist' the Commissioner, Section 22 provides for appeal to 'such authority as may be prescribed' by rules made under the Act. Any person appointed under Section 3 does not, by the mere fact of such appointment, become entitled to entertain or dispose of any appeal under the Act. He cannot do so unless he is named as one entitled so to do under the rules made under Section 22(1) of the Act. It may well be that the power to hear and decide an appeal is given to an authority not appointed under Section 3. Once the position is reached that the power to hear an appeal is referable to the rules framed under Section 22(1), it becomes obvious that an appellate authority hears an appeal qua his powers thereunder and not by virtue of his appointment under Section 3, though he may happen to be a person appointed thereunder. That being so, we think that an appellate authority is in that capacity not within the expression 'any person appointed under Section 3 to assist him as occurring in Section 22-B of the Act.
8. In the view we have taken, we answer the two questions referred to us in the manner indicated above. We also direct the Commissioner to pay all costs of this reference. Hearing fee Rs. 50.