1. This order should be read in continuation of our order dated 8th of January, 1970. In pursuance of that order the Sales Tax Tribunal, Haryana, has drawn up the statement of the case along with the question of law on which our opinion is invited under Section 22(5) of the Punjab General Sales Tax Act (46 of 1948).
2. The assessee, Messrs Krishan Lal Kashmiri Lal of Ambala City is a partnership concern. It does karyana business. The partnership is registered under the Punjab General Sales Tax Act. During the assessment year 1957-58, the assessee-concern showed its gross turnover as Rs. 2,65,573-14-6. A deduction of Rs. 55,935-11-9 was claimed under Section 5(2)(a)(i) of the Act for the sale of goods declared tax-free under Section 6 of the Act. A further deduction of Rs. 61,411-4-9 was claimed under Section 5(2)(a)(ii) of the Act for sales made to registered dealers. Another deduction of Rs. 4,579-7-9 was claimed under Section 5(2)(a)(b) of the Act for the amount of sales tax included in the gross turnover. At the time the accounts were being examined by the assessing authority, it was found that the total of the petitioner's purchases of taxable goods was Rs. 3,61,055-8-0, and not Rs. 2,48,681-6-3 as shown by it. Thus, the total turnover was shown less by about Rs. 1,13,000. The assessing authority, after recording the state ment of the assessee, rejected the books of account and finalised the assess ment on the 'best judgment' basis. It determined the gross turnover at Rs. 4,99,951. It also allowed the deduction claimed and fixed the taxable turnover at Rs. 3,70,647-10-0. The assessee was asked to pay sales tax amounting to Rs. 11,582.72. The assessee, who was dissatisfied with the order of the assessing authority, preferred an appeal before the Deputy Excise and Taxation Commissioner (Appeals). The Appellate Commissioner maintained the order of rejection of the account books but reduced the addition of Rs. 2,24,897-3-6 in the taxable turnover of the assessee to Rs. 24,897-3-6. The assessee was still dissatisfied with the appellate order and preferred a revision to the Excise and Taxation Commissioner. The Excise and Taxation Commissioner suo motu took action in order to examine the legality and propriety of the above-said appellate order and in that process rejected the revision of the assessee but revised the assessment. It was found by the revisional authority that the total purchases made by the assessee were worth Rs. 3,61,035-8-0. It found that the mistake in showing the total purchases at Rs. 2,48,681 was due to wrong totalling and if the totalling had been correctly made, the purchases were as found by the revisional authority. This fact was admitted by the dealer. Working the taxable turnover of the assessee on the basis of the figure of Rs. 3,48,681-6-3, which figure was arrived at after taking into account certain entries which have been made where the wrong total of Rs. 2,48,681 had been shown, the total purchases came to Rs. 3,48,681-6-3. It was also found that no clerical mistake had been made by writing the figure of Rs. 2,48,681-6-3 instead of Rs. 3,48,681-6-3. The net result was that the total purchases during the year, including the opening balance, were found to be Rs. 3,61,035-8-0. The sales during the year were determined at Rs. 3,75,000 plus Rs. 55,935-11-9, the amount which represented the sale of tax-free goods. Thus, the total taxable turnover was fixed at Rs. 3,03,789-0-9 and the assessment was made accordingly. Against the order of the Excise and Taxation Commissioner, a further revision was filed by the assessee to the Financial Commissioner. The Financial Commissioner rejected the revision and affirmed the order of the Excise and Taxation Commissioner. The argument that the Excise and Taxation Commissioner could not interfere with the decision of the appellate authority under Section 21(1) of the Act was negatived.
3. This led to an application by the assessee under Section 22(1) of the Act before the Financial Commissioner asking that certain questions of law that arose out of his order dated 3rd January, 1961, be referred to this court for decision. The learned Financial Commissioner came to the conclusion that no such questions of law arose and accordingly rejected the petition. The assessee then made an application to this court under Section 22(2) of the Act and we directed that the following question of law be referred:
Whether in the circumstance and facts of this case the Commissioner was entitled under Section 21(1) of the Act to reverse the question of fact determined by the Deputy Excise and Taxation Commissioner
4. The only contention advanced before us is that the Excise and Taxa tion Commissioner could not, while exercising his power of revision under Section 21(1) of the Act, differ with the appellate authority on a question of fact. We are unable to agree with this contention. Section 21(1) read thus:
21. (1) The Commissioner may of his own motion call for the record of any proceedings which are pending before, or have been disposed of by, any authority subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein, and may pass such order in relation thereto as he may think fit.
5. It will appear on a plain reading of this provision that the revisional authority can examine the legality as well as the propriety of the order. This phrase was considered by the Supreme Court in The State of Kerala v. K.M. Cheria Abdulla and Co. A.I.R. 1965 S.C. 1585 and by this court in Hari Chand Rattan Chand & Co. v. The Deputy Excise and Taxation Commissioner (Additional), Punjab I.L.R. 1 Punj. And Har. 251, and it was held that the revisional authority could, on the record before the appellate authority, rectify any error which had been committed including an error of fact. We are not inclined to accept the contention that the revisional authority cannot examine that the appellate authority has gone completely wrong on a question of fact. The phraseology in Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, is similar to the phraseology in Section 21(1) of the Sales Tax Act. While dealing with a case under Section 15(5), their Lordships of the Supreme Court in Nanak Chand v. Inderjit and Ors. 1969 Rent Control Reporter 887, observed as under:
It was then contended that the High Court had no jurisdiction to go into the question whether the premises already in occupation of the land lord was insufficient. It was pointed out that the appellate authority had examined the evidence and found that from the point of view of social habits and the status and nature of his duties, the landlord could not reason ably require more accommodation than the three rooms in addition to the bath room. The High Court has, however, taken a different view and held that the premises already occupied by the landlord was insufficient. We are unable to accept the argument that the High Court had no jurisdiction to reverse the finding of the appellate authority on this point. The revisional power conferred on the High Court under Section 15(5) of the Act is wider than that conferred by Section 115 of the Civil Procedure Code. Under Section 15(5) of the Act the High Court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the finding by the authorities about the requirement of the landlord under Section 13(3)(a)(i). Reference was made on behalf of the appellant to the decision of this court in Hari Shankar v. Rao Girdhari Lal Chowdhury1, wherein it was held that the High Court in exercise of its revisional powers was not entitled to reassess the value of the evidence and to substitute its own conclusions of fact in place of those reached by the courts below. But the revisional power of the High Court in that case was exercised under Section 35(1) of the Delhi and Ajmer Rent Control Act (38 of 1952) which is different in language from Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, with which we are concerned in the present case.
6. These observations also demolish the validity of the contention advanced on behalf of the learned counsel for the assessee.
7. For the reasons recorded above, we answer the question referred to us in the affirmative, that is, against the assessee and in favour of the revenue. The State will be entitled to costs which we assess at Rs. 150.