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AshwIn Industries Vs. Deputy Commissioner of Sales Tax, Baroda and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 2005 of 1979
Judge
Reported in[1982]50STC322(Guj)
ActsCentral Sales Tax Act, 1956 - Sections 16 ; Gujarat Sales Tax Act, 1969 - Sections 16, 27, 27(2), 27(5), 27(6), 45(1), 66, 67 and 67(1)
AppellantAshwIn Industries
RespondentDeputy Commissioner of Sales Tax, Baroda and anr.
Appellant Advocate K.H. Kaji, Adv.
Respondent Advocate J.R. Nanavati, Assistant Government Pleader
Cases ReferredState of Madras v. Madurai Mills Co. Ltd.
Excerpt:
sales tax - revisional power - sections 27 and 67 of central sales tax act, 1956 - petition filed against notice given for using revisional power by deputy commissioner of sale tax after assistant commissioner suo-motu used this power - under section 67 (1) commissioner is given suo motu revisional jurisdiction - under section 27 (6) jurisdiction delegated to assistant commissioner to enable him to exercise same power and duties as commissioner within his own jurisdiction - once revisional order already passed under section 67 by assistant commissioner of sale tax revisional power exhausted - it could not be reinvoked qua same subject matter by deputy commissioner - impugned notice void. - - 47 of 1977. the petitioner-firm raised the same contentions which it had raised before the.....majmudar, j. 1. a short question which arises for our consideration in this special civil application is as to whether the deputy commissioner of sales tax can seek to invoke suo motu revisional powers under section 67(1)(a) of the gujarat sales tax act, 1969, hereinafter referred to as 'the act', when the assistant commissioner of sales tax on a prior occasion had exercised suo motu revisional powers regarding the same subject-matter under section 67(1)(a) of the said act. 2. a few facts leading to this controversy may now be stated : the petitioner was a partnership firm since dissolved which was carrying on its business in the name and style of m/s. ashwin vanaspati pvt. ltd. at samlaya, taluka savli, district baroda. the relevant period for the purposes of this petition is s.y. 2028......
Judgment:

Majmudar, J.

1. A short question which arises for our consideration in this special civil application is as to whether the Deputy Commissioner of Sales Tax can seek to invoke suo motu revisional powers under section 67(1)(a) of the Gujarat Sales Tax Act, 1969, hereinafter referred to as 'the act', when the Assistant Commissioner of Sales Tax on a prior occasion had exercised suo motu revisional powers regarding the same subject-matter under section 67(1)(a) of the said Act.

2. A few facts leading to this controversy may now be stated :

The petitioner was a partnership firm since dissolved which was carrying on its business in the name and style of M/s. Ashwin Vanaspati Pvt. Ltd. at Samlaya, Taluka Savli, District Baroda. The relevant period for the purposes of this petition is S.Y. 2028. The petitioner-firm was carrying on the business of manufacturing vanaspati, soap, refined oil, etc., at its factory at Samlaya. For the purpose of producing vanaspati, the petitioner-firm used to purchase seeds, such as groundnuts, etc., and oil. According to the petitioner its purchases fell in the following four categories :

(1) The petitioner-firm purchase oil from outside the State of Gujarat on giving form No. C and paying 3 per cent tax thereon under the Central Sales Tax Act, 1956.

(2) The petitioner-firm purchased seeds after payment of tax from the market in the State of Gujarat and crushed the same, extracted oil and manufactured vanaspati therefrom.

(3) The petitioner-firm purchased oil from the Gujarat market on executing form No. 19 under the Gujarat Sales Tax Rules.

(4) The petitioner-firm purchased oil in the market after paying sales tax thereon to the vendors.

3. In the course of assessment proceedings for S.Y. 2028, under the provisions of the Act, the petitioner-firm claimed that it was entitled to set-off under rule 42 of the Rules framed under the said Act. The said claim was in respect of the sales tax paid by the petitioner on its purchases of oil from the local market out of which vanaspati was manufactured and sold within the State or in the course of inter-State trade and commerce after recovering tax from the purchasers. The contention of the petitioner-firm in that regard was that the detailed record of the petitioner-firm showed that the oil purchased on C form under the Central Sales Tax Act and the seeds purchased from the local market after paying sales tax were only used for making vanaspati which was sent on consignment basis outside the State to the agents of the petitioner-firm and sold there, and therefore, there was no liability of the petitioner-firm to have deducted from 3 per cent set-off of such outside State sales under the second proviso to paragraph (B) of rule 42 of the Gujarat Sales Tax Rules, 1970, hereinafter referred to as 'the Rules'. It appears that the Sales Tax Officer, Baroda, accepted the aforesaid submissions of the petitioner-firm and allowed full set-off in respect of sales tax paid by the petitioner-firm on the purchase of oil in the local market. The said set-off came to Rs. 3,63,690.88.

4. The Assistant Commissioner of Sales Tax, Baroda, however, in exercise of suo motu revisional powers under section 67 of the Act, took the order of the Sales Tax Officer in revision and by his order dated 14th March, 1977, held that the petitioner-firm was manufacturing vanaspati in a single plant, and the petitioner-firm's contention that the set-off was not liable to be reduced under the second proviso to rule 42 was not acceptable. The Assistant Commissioner of Sales Tax, therefore, revised the aforesaid order of the Sales Tax Officer by deducting from the aforesaid set-off an amount equal to 3 per cent of the total sale price in respect of the goods sent by the petitioner on consignment basis to its agents outside the State and sold there. The Assistant Commissioner by his order in revision disallowed the set-off of Rs. 1,88,513.89 out of the total set-off allowed by the Sales Tax Officer to the turn of Rs. 3,63,690.88. The Assistant Commissioner of Sales Tax in the aforesaid revisional order also held that the petitioner-firm was not liable purchase tax under section 16 of the Act and as the petitioner-firm was not liable to pay purchase tax, no question of levying any penalty from the petitioner under section 45(1) of the Act arose.

5. Thereafter the petitioner being aggrieved by the aforesaid revisional order of the Assistant Commissioner of Sales Tax preferred a revision application to the Gujarat Sales Tax Tribunal, being Revision Application No. 47 of 1977. The petitioner-firm raised the same contentions which it had raised before the Assistant Commissioner of Sales Tax, namely, that in view of the two distinct separate channels maintained by the petitioner-firm with all the detailed registers the petitioner-firm had clearly established that the vanaspati sent on consignment basis outside the State of Gujarat was only from vanaspati manufactured out of oil purchased on executing C form and groundnuts purchased in the local market on payment of sales tax and oil extracted therefrom. The Sales Tax Tribunal relying on its earlier decision in the case of Prabhat Solvent Extraction Industries Pvt. Ltd. dismissed the petitioner's application by its order dated 27th December, 1977. The Sales Tax Tribunal took the view that as the plant was a single one in which vanaspati was manufactured from the aforesaid two channels, the contention of the petitioner-firm could not be accepted, and that under the second proviso to rule 42, the authorities were entitled to deduct 3 per cent on the total sale price of vanaspati consigned outside State and sold there and deduct the same from the set-off available to the petitioner-firm in respect of purchases of oil in the local market after payment of sales tax to the vendors.

6. The petitioner-firm thereafter preferred a reference application for referring the question involved in the matter for decision of the High Court. In the meantime, the petitioner firm also filed a special civil application, being Special Civil Application No. 470 of 1977, challenging the vires of the second proviso to rule 42. During the pendency of the said special civil application before this Court, a decision was rendered in another matter by this Court, being Sales Tax Reference No. 6 of 1976 (Prabhat Solvent Extraction Industries Pvt. Ltd. v. State of Gujarat [1982] 49 STC 322) which was decided by this Court on 15th December, 1978. It was held that the deduction to be effected from the set-off or refund to be granted in respect of tax paid on purchases of goods used in the manufacture of goods sold on consignment basis. As a result of the aforesaid decision of this Court, the petitioner applied for certain amendments in its aforesaid Special Civil Application No. 470 of 1977 contending in the alternative that the order of the Tribunal declining to grant the set-off on an erroneous construction of the second proviso to rule 42 was required to be quashed and the Tribunal was required to be directed to decide the matter afresh in the light of the correct interpretation of the proviso to rule 42 as laid down by this Court in the aforesaid Reference No. 6 of 1976 (Prabhat Solvent Extraction Industries Pct. Ltd. v. State of Gujarat [1982] 49 STC 322). The said amendment was granted by this Court and thereafter the petitioner and the revenue agreed to an order being passed in Special C.A. No. 470 of 1977 and by consent the Tribunal's order in Revision Application No. 47 of 1977 was quashed and the matter was remanded to the Tribunal for a fresh decision in accordance with the decision of this Court in Prabhat Solvent Extraction Industries Pvt. Ltd.'s case [1982] 49 STC 322. In the said consent order passed in Special C.A. No. 470 of 1977 it was agreed that the petitioner will be entitled to raise before the Tribunal on remand the said two channel theory but that the Tribunal will decide the said question on the same lines on which it had decided earlier and that the petitioner would be entitled to apply for a reference against the said decision of the Tribunal on the two channel theory.

7. It appears that after the said order of remand by consent of the parties in Special C.A. No. 470 of 1977, the Tribunal reheard the said Revision Application No. 47 of 1977 and by its judgment dated 16th February, 1979, decided against the petitioner on the two channel theory on the same lines on which it had earlier rejected the said theory. However, as regards the set-off available, the Tribunal followed the principles laid down by this Court in S.T.R. No. 6 of 1976 (Prabhat Solvent Extraction Industries Pvt. Ltd. v. State of Gujarat [1982] 49 STC 322) and the petitioner as well as the revenue submitted an agreed statement as regards the set-off available to the petitioner under rule 42, which amount came to Rs. 1,04,823. On that agreement the Tribunal held that the petitioner was entitled to a set-off of Rs. 1,04,823. It appears that thereafter the State of Gujarat filed an application before the Tribunal on 20th February, 1979, requesting the Tribunal to rehear the aforesaid revision application already decided by it. According to the State of Gujarat, the figures of set-off were not worked out correctly. That application came to be rejected by the Tribunal by its order dated 9th March, 1979. It appears that the petitioner has already moved the Tribunal for making a fresh reference to this Court against the order dated 16th February, 1979.

8. Now in the meantime, a notice was issued to the petitioner by the Deputy Commissioner of Sales Tax, Baroda, seeking to revise the earlier revisional order passed by the Assistant Commissioner of Sales Tax dated 14th March, 1977, alleging that the said order in so far as it decided that the petitioner was not liable to pay purchase tax under section 16 of the Act was illegal and unauthorised, and consequently, the said order was required to be revised under the provisions of section 67 of the Act. It is this notice issued to the petitioner seeking to once again exercise suo motu revisional power under section 67 on the same subject-matter that is impugned by the petitioner in the present petition.

9. MR. K. H. Kaji, the learned Advocate appearing for the petitioner, raise two submissions in support of this petition.

(1) Mr. Kaji submitted that the Assistant Commissioner of Sales Tax had already exercised power under section 67 of the act regarding the very same subject-matter and thereafter it was not open to Deputy Commissioner of Sales Tax to again invoke the power of revision under section 67 of the Act and to seek to revise the earlier revisional order of the Assistant Commissioner of Sales Tax on the same subject and hence the impugned notice was ex facie without jurisdiction and null and void.

(2) Mr. Kaji alternatively submitted that even assuming that the Deputy Commissioner of Sales Tax could once again invoke the revisional jurisdiction under section 67(1) of the Act on the same subject-matter, the prior revisional order passed on 14th March, 1977, by the Assistant Commissioner of Sales Tax had merged with the order of the Sales Tax Tribunal in Revision Application No. 47 of 1977, which ultimately came to be disposed of by the Tribunal on remand by this Court on 16th February, 1979, and consequently, the Deputy Commissioner of Sales Tax had no jurisdiction to seek to revise the prior revisional order of the Assistant Commissioner of Sales Tax which did not exist independently of the Tribunal's order in which it had merged and hence the impugned notice was without jurisdiction and null and void.

10. Mr. J. R. Nanavati, the learned Advocate appearing for the respondents, raised a preliminary contention to the effect that the impugned notice had not decided anything against the petitioner-firm. It was a mere notice calling upon him to show cause why the order of the Assistant Commissioner should not be revised by the Deputy Commissioner and that the petitioner will have full opportunity to put forward his contentions before the deputy Commissioner of Sales Tax in pursuance to the said show cause notice and thereafter if the final order is passed against the petitioner, it has the remedy under the Act of going higher-up to the Tribunal by way of further revision and also proceed still higher-up by claiming a reference to this Court. Consequently, according to Mr. Nanavati, the present petition was premature.

11. So far as the preliminary objection of Mr. Nanavati is concerned, we will deal with it at this stage. The aforesaid submissions of Mr. Kaji, which we have reproduced, seek to attack the impugned notice issued by the Deputy Commissioner of Sales Tax on the ground of lack of jurisdiction. Mr. Kaji's contention is that once a revisional order was already passed under section 67 by the Assistant Commissioner of Sales Tax, the said power had exhausted itself and it could not be reinvoked qua the same subject-matter by the Deputy Commissioner of Sales Tax and thus the impugned notice, according to Mr. Kaji, was a nullity. In that view of the matter, according to Mr. Kaji, the very condition precedent to the exercise of power under section 67 was absent in the present case. This contention goes to the very root of the jurisdiction of the Deputy Commissioner in invoking suo motu revisional powers under section 67 of the Act. It is now well-settled that if an authority purports to take any action which prima facie shown to be null and void and if it is shown to be devoid of any jurisdiction, the proceeding would be liable to be quashed even at the stage of show cause notice. As Mr. Kaji's contention pertains to the jurisdiction of the Deputy Commissioner to initiate suo motu revisional proceedings, such a contention cannot be refused to be entertained on the basis of the preliminary objection taken by Mr. Nanavati. It is not as if the issuance of the impugned notice is challenged on merits by Mr. Kaji. In that case the proceedings would have been required to go through to their logical end in the hierarchy of proceedings as permissible under the act. But when the petitioner challenges the very jurisdiction of the Deputy Commissioner for issuance of the impugned notice, it cannot be said that such a contention cannot be raised by the petitioner at this stage with a prayer for a writ of prohibition. Under the circumstances, the preliminary objection raised by Mr. Nanavati is liable to fail.

12. That takes us to the merits of the contentions raised by Mr. Kaji in support of the petition. The first submission of Mr. Kaji is that the Assistant Commissioner of Sales Tax When he passed the order on 14th March, 1977, had exercised powers of suo motu revision under section 67 of the Act. Under the said section, the Commissioner of Sales Tax is given power to suo motu revise within the years any order passed by any officer appointed under section 27 of the Act. Mr. Kaji's submission is that the Assistant Commissioner of Sales Tax under the provisions of section 27(6) was exercising within the limits of his jurisdiction the same powers and was performing the same duties as the Commissioner under the Act. Consequently, while the Assistant Commissioner of Sales Tax exercised powers under section 67(1) seeking to suo motu revise the order of the Sales Tax Officer, he had invoked powers of revision on the same subject-matter which had inhered in the Commissioner under Section 67(1)(a) of the Act and thereafter on the same subject-matter the Deputy Commissioner of Sales Tax acting as Commissioner could not reinvoke the revisional power once again under section 67(1)(a). Mr. J. R. Nanavati combated the aforesaid submission of Mr. Kaji and submitted that under section 67(1) of the Act, the Commissioner has got jurisdiction to suo motu revise within three years from the date of the order, any order passed by any officer appointed under section 27 to assist him. Under section 27(2) the Assistant Commissioner is shown to be one of the officers appointed to assist the Commissioner. Mr. Nanavati further submitted that under section 27(5) of the Act, the Deputy Commissioner has all the powers of the Commissioner and can exercise in the area within his jurisdiction all such powers and can perform all the duties conferred or imposed on the Commissioner by or under the Act. Consequently, the impugned notice by the Deputy Commissioner, seeking to revise a prior order of the Assistant Commissioner who is an officer appointed to assist the Commissioner under section 27(2) is perfectly a legal and valid notice.

13. Now in order to appreciate the rival contentions of the parties, it is necessary to have a look at section 67 of the Act :

'67. (1) Subject to the provisions of section 66 and to any rules which may be made in this behalf, - (a) the Commissioner on his own motion within three years or on application made to him within one year from the date of any order passed by any officer appointed under section 27 to assist him, may call for and examine the record of any such order and pass such order thereon as he thinks just and proper; .....................................................'

14. A mere look at the said provision shows that the revisional power is conferred on the Commissioner of Sales Tax to suo motu revise within the period prescribed any order passed by any officer appointed under section 27 to assist him. This revisional authority as contemplated in the aforesaid section to revise orders of officers appointed under section 27 to assist him. That takes us to the scrutiny of section 27 of the Act. Section 27 reads as under :

'27. (1) For carrying out the purposes of this Act, the State Government shall appoint an officer to be called the Commissioner of Sales Tax.

(2) To assist the Commissioner in the execution of his functions under this Act, the State Government may appoint Additional Commissioners of Sales Tax (if any), and such number of, -

(a) Deputy Commissioners,

(b) Assistant Commissioners,

(c) Sales Tax Officers, and

(d) other officers and persons, and give them such designations (if any), as the State Government thinks necessary.

(3) The Commissioner shall have jurisdiction over the whole of the State of Gujarat; and an Additional Commissioner of Sales Tax, if any be appointed, shall have jurisdiction over the whole of the State or where the State Government so directs, over any local area thereof. All other officers shall have jurisdiction over the whole of the State or over such local areas as the State Government may specify.

(4) The Commissioner shall have and exercise all the powers and perform all the duties, conferred or imposed on the Commissioner by or under this Act, and an Additional Commissioner, if any be appointed, shall, save as otherwise directed by the State Government, have and exercise within his jurisdiction all the powers and perform all the duties, conferred or imposed on the Commissioner by or under this Act.

(5) A Deputy Commissioner shall have and exercise in the area within his jurisdiction all the powers, and shall perform all the duties, conferred or imposed on the Commissioner, by or under this Act; but the Commissioner may, by order published in the Official Gazette, direct that any Deputy Commissioner, or all Deputy Commissioners generally, shall not exercise such powers or perform such duties as are specified in the order, and thereupon such Deputy Commissioner or, as the case may be, all Deputy Commissioner, shall cease to exercise those powers and perform those duties. The Commissioner may in like manner revoke any such direction and thereupon the powers or duties exercisable or performable by such Deputy Commissioner or, as the case may be, all Deputy Commissioners before such direction was issued, shall be restored to him or them.

(6) Assistant Commissioners, Sales Tax Officers and other officers shall within their jurisdiction exercise such of the powers and perform such of the duties of the Commissioner under this Act, as the Commissioner may, subject to such conditions and restrictions as the State Government may by general or special order impose, by order in writing delegate to them either generally or as respects any particular matter or class of matters.

(7) The State Government may subject to such restrictions and conditions (if any), as it may impose by notification in Official Gazette, delegate to the Commissioner the powers (not being powers relating to the appointment of Additional Commissioners or Deputy Commissioners), conferred on the State Government by sub-sections (2) and (3).

(8) All officers and persons appointed under sub-section (2) shall be subordinate to the Commissioner; and the subordination of the officers (other than the Commissioner), and of persons amongst themselves shall be such as may be prescribed.'

15. A combined reading of sections 67(1) and 27(2) reveals that the Deputy Commissioners and Assistant Commissioners are officers appointed to assist the Commissioner. In addition, the Additional Commissioners and other officers and persons, as the State Government thinks necessary, can also be appointed to assist the Commissioner. It is therefore clear that on prior occasion when the Assistant Commissioner of Sales Tax sought to revise the order of the Sales Tax Officer, he exercised the power of the Commissioner under section 67(1)(a) read with section 27(6) and further read with section 27(2) of the Act. The Sales Tax Officer was an officer who was appointed under section 27 to assist the Commissioner, while the Assistant Commissioner of Sales Tax by virtue of section 27(6) can exercise the same powers and can perform the same duties of the Commissioner under the Act. Consequently, when he sought to revise the order of the Sales Tax Officer, he invoked the revisional jurisdiction under section 67(1)(a) and passed the prior order. As we have already shown above, the said order was carried higher-up by the petitioner by going to the Tribunal and even by challenging the Tribunal's order by filing a writ petition in this Court and which had resulted in the remand to the Tribunal and after remand also the Tribunal has disposed of the revision before it. Thus, in 1967 when the Assistant Commissioner of Sales Tax exercised revisional jurisdiction under section 67(1), he did so as Commissioner by virtue of section 27(6) and revised the order of the Sales Tax Officer, who is one of the officers appointed under section 27 to assist Commissioner. Thus the power under section 67(1)(a) qua the same subject-matter came to be fully exercised and was exhausted. Thereafter the Deputy Commissioner under the same section 67(1) read with section 27(5) could be have reinvoked the same revisional power of the Commissioner qua the same subject-matter when the power was once exercised and was already exhausted. Under the circumstances, we find that Mr. Kaji's submission is well-justified that the impugned notice seeking to re-exercise the same revisional powers qua the same subject-matter, once that power was already exhausted on an earlier occasion, is patently bad. Mr. Kaji in support of his submission relied upon the judgment of the Division Bech of this Court consisting of A. D. Desai and B. K. Mehta, JJ., in Special Civil Application No. 1659 of 1972 decided on 17th August, 1973. In the aforesaid special civil application this Court was concerned with the legality of the notice issued by the Assistant Commissioner and his subsequent order purported to have been passed in exercise of suo motu revisional jurisdiction under section 27 of the Saurashtra Sales Tax Ordinance No. 18 of 1950, when the earlier order of the Deputy Commissioner under the same section 27 had resulted in exercise of revisional jurisdiction on a prior occasion qua the same subject-matter. The question before the Division Bench in the aforesaid decision was whether once under section 27 of the Saurashtra Sales Tax Ordinance revisional jurisdiction was exercised by the Deputy Commissioner the same section can be again pressed in service for sustaining reinitiation of suo motu revisional proceedings qua the same subject-matter by the Assistant Commissioner purporting to exercise powers for the second time under the same section 27. The Division Bench on the interpretation of section 27 of the Saurashtra Sales Tax Ordinance came to the conclusion that once the revisional jurisdiction was invoked under section 27 by one officer exercising the same powers under the said Act, the same revisional jurisdiction could not be reinvoked by another officer seeking to exercise powers under the same section as the power of revision qua the same subject-matter at the prior stage was fully exhausted. We may mention at this stage that section 27 of the Saurashtra Sales Tax Ordinance which came up for consideration before the Division Bench in the aforesaid case is practically in pari materia with section 67(1) of the Act in the present case. Section 27 of the Saurashtra Sales Tax Ordinance reads as under :

'27. (1) Subject to such rules as may be prescribed and for reasons to be recorded in writing the Commissioner may, upon application or of his own motion, revise any order passed under this Ordinance or the Rules thereunder by a person appointed under section 3 to assist him, and subject to the aforesaid the Tribunal may, upon application, revise any order passed by the Commissioner .............'

16. Thus under section 27 of the Saurashtra Ordinance, revisional power was conferred on the Commissioner to revise any order passed by a person appointed under section 3 of the said Ordinance; the Government was given power to appoint any person to be the Commissioner of Sales Tax and any other person to assist him as the Government may think fit. While considering the question posed for decision of the Division Bench in the aforesaid case, it was observed by A. D. Desai, J., on behalf of the Division Bench as under :

'The question is, can the same authority in the exercise of the same power of revision under section 27 revise its own previous order passed in revision in respect of the same subject-matter Under section 27 the power of revision is conferred on the Commissioner. The Commissioner can delegate the same power and the delegate when it exercises the power does so as a Commissioner. The order which a delegate passes in revision is in effect the order of the Commissioner. When an officer exercises his power as a Commissioner, the power of the Commissioner to revise an order is exhausted. The Commissioner or his another delegate cannot exercise the power of revision over again in respect of the same subject-matter. In the present case what has happened is that in passing the order at annexure A/8 the Assistant Commissioner, respondent No. 2, exercised the power of revision and in exercise of that power reviewed the order at annexure A/6 which was passed by the Deputy Commissioner in exercise of the revisional powers vested in him as a Commissioner under section 27 of the Ordinance. The net result is that respondent No. 2 reviewed the order at annexure A/6 which was passed in the exercise of revisional powers by the Commissioner. The revisional powers cannot in this manner be exercised twice over in respect of same subject-matter with the result that the order at annexure A/8 has to be set aside.'

17. The aforesaid decision, in our view, completely clinches the issue and consequently Mr. Kaji's submission has got to be upheld. But Mr. J. R. Nanavati, the learned Assistant Government Pleader for the respondents, submitted that the scheme of the present Act is not the same as was found in the Saurashtra Ordinance which was before the Division Bench. Mr. J. R. Nanavati put great emphasis on section 27(5), (6), (7) and (8) which we have extracted in the earlier part of this judgment. Mr. Nanavati submitted that under section 27(6) the Assistant Commissioner exercises his own powers on account of the conditional legislation as is found therein and he cannot be said that a mere delegate of the Commissioner as was found by the Division Bench in the case pertaining to the Saurashtra Ordinance. Mr. Nanavati submitted that section 3 of the Saurashtra Ordinance was not similarly worded like section 27 of the Act. Consequently when the Assistant Commissioner passed the order under section 67 revising the order of the Sales Tax Officer, he did it on his own and consequently as the Assistant Commissioner was subordinate to the Deputy Commissioner in the hierarchy of the setting as found in section 27(6) read with rule 5 of the Rules, it must be held that the exercise of power by the Assistant Commissioner under section 67 was exercised on his own behalf and his order was, therefore, subject to the hierarchy of further proceeding and as the Deputy Commissioner was higher-up as compared to the Assistant Commissioner in the setting of hierarchy, as found from rule 5, his order can be revised once again under section 67 by the Deputy Commissioner. It is difficult to agree with the aforesaid submission of Mr. Nanavati. It may be that in view of section 27(6) and (8), the Assistant Commissioner may be subordinate to the Deputy Commissioner and the Deputy Commissioner may be subordinate to the Commissioner, but so far as the revisional powers under section 67 are concerned, they inhere in the Commissioner and they can be exercised qua the orders of the officers who are appointed to assist the Commissioner under section 27. Once for a given subject-matter this power is exercised, either by the Commissioner himself, or by the Deputy Commissioner or by the Assistant Commissioner, as the case may be, on account of section 27(5) or (6) of the Act, the revisional power qua the same subject-matter is fully exhausted. It was a mere accident that in the present case at the prior stage the Assistant Commissioner exercised power of revision under section 67. The Commissioner himself could have done it and if the Commissioner would have himself exercised the power under section 67 on the same subject-matter at that earlier occasion, the respondent could never have contended that later on a second revision regarding the same subject-matter could have been entertained by the Deputy Commissioner acting as the Commissioner. Mr. Nanavati also agreed to this limited extent. But in his submission in the present case instead of the Commissioner, the Assistant Commissioner exercised the power under section 67 on the prior occasion and once he exercised power, he exercised it on his own and not as the Commissioner. It is difficult for us to agree to this submission of Mr. Nanavati. Under section 67(1) the Commissioner is given suo motu revisional jurisdiction and it is only because of section 27(6) the jurisdiction is given to the Assistant Commissioner to enable him to exercise the same powers and to perform the same duties as the Commissioner within his own jurisdiction. But once he seeks to invoke section 67(1) he acts as a delegate of the Commissioner and once he acts as a delegate of the Commissioner, he exercised revisional jurisdiction of the Commissioner himself. Consequently the power of revision which inheres in the Commissioner under section 67 comes to an end qua the same subject-matter. Under the circumstances, it is not possible to accept the submission of Mr. Nanavati that even though on an earlier occasion power under section 67(1) was exercised by the Assistant Commissioner acting as the Commissioner, some other officer can subsequently act as the Commissioner and seek to revise the prior order of the Assistant Commissioner who had acted as the Commissioner on that previous occasion. If Mr. Nanavati's submission is accepted, a curious result will follow. The Commissioner or his delegate will be able to revise his previous orders, as passed by his delegate. Thus, in the guise of revision it will amount to a review of the previous decision. Section 67 does not confer any such power of review. Such type of an order is contradicted by section 67(1)(a). Mr. Nanavati to make good his submission invited our attention to a later judgment of the Division Bench of this Court in Special C.A. No. 351 of 1975, decided on 11th August, 1975, by the Division Bench consisting of J. B. Mehta and T. U. Mehta, JJ. J. B. Mehta, J., speaking for the Division Bench, had observed that once the Assistant Commissioner of Sales Tax passes an appellate order under section 65 of the Act, the said order can be made the subject-matter of revision under section 67(1)(a). The question before the Division Bench in the aforesaid case was whether such revisional powers can be exercised or not. It was contended before the Division Bench that once the Assistant Commissioner exercised his power under the Act, he acted as the Commissioner and hence no revision against his order lay under section 67. This contention was repelled by the Division Bench by observing that under section 27(6) by a conditional legislation the power of the Commissioner has been delegated to the Assistant Commissioner, but once the Assistant Commissioner exercised his appellate powers under section 65 of the Act, his decision as an appellate authority was itself made subject to further revision by virtue of section 65(7), and consequently, it could not be said that the Commissioner or for that matter the Deputy Commissioner had no jurisdiction to revise the appellate order passed by the Assistant Commissioner under section 67. The question which had arisen for consideration before the Division Bench of J. B. Mehta and T. U. Mehta, JJ., was not the same which has arisen before us. On the contrary the question which we have to decide is squarely governed by the earlier decision of this Court in Special C.A. No. 1659 of 1972. In fact, J. B. Mehta, J., speaking for the Division Bench in the later case, had made it clear that in case of re-exercise of revisional powers the situation would be entirely different. In the closing stages of the judgment in Special C.A. No. 351 of 1975, while dealing with the final submission of Mr. Nanavati, in the context of the earlier decision of this Court in Special C.A. No. 1659 of 1972, J. B. Mehta, J., speaking for the Division Bench, has made the following observations :

'The Division Bench in that case was concerned with the saurashtra Ordinance where section 27 conferred revisional jurisdiction. In that case at the earlier stage at the instance of the assessee the revisional jurisdiction was already invoked on his application for revision under the same section 27 by the authority by holding that reassessment proceeding to a certain extent was time-barred. It was, therefore, held that under the same section 27 suo motu power of revision could not be again exercised to set at naught the said decision by exercising revisional jurisdiction against the original assessment itself. That is why it was observed in that limited context that under section 27 the power of revision was conferred on the Commissioner, which the Commissioner may delegate, and the delegate when it exercised the same power did so as the Commissioner. The order which the delegate passed in revision was therefore in effect the order of the Commissioner. When an officer exercises power of the Commissioner, the Commissioner's power to revise the order is already exhausted, and therefore, the Commissioner or his any delegate could not exercise the same power of revision over again in respect of the same subject-matter. That decision proceeds on the particulars factors of that case, where under the very same section 27 revisional jurisdiction was already exercised by the competent authority and the order was sought to be set at naught by exercising revisional jurisdiction once again under the very same provision in the context of the same subject-matter. That decision could never be pressed in aid as an interpretation of the sense of the term in which the expression 'delegate' is used, whether in the technical sense of an agent, so as to make the order of the delegate as the order of the Commissioner. The Division Bench never purported to consider the entire hierarchical scheme of judicial subordination which would be wholly unworkable and would be redundant, if such sense of the term 'delegate or agent' was pressed in aid. That question has not at all been considered in the decision because the Division Bench had not gone into that larger question as to whether such legal theory of a delegate or agent could ever be applicable in the context of such a complete code of remedies or correction in such hierarchical set up, specifically created by the legislature, so that the errors in tax assessments could be corrected by these various remedies under the Act when civil court's jurisdiction was excluded in view of the self-contained code making ample provision for correction of errors, so that the correct tax could be assessed and levied. That decision only lays down a simple ratio that under the same provision revisional jurisdiction once exercised was exhausted and it could not be exercised again and again to set at naught the earlier order.'

18. Thus, the aforesaid decision of the later Division Bench of this Court instead of going against the decision reaffirms the earlier view of this Court in Special C.A. No. 1659 of 1972. The question before the Division Bench consisting of J. B. Mehta and T. U. Mehta, JJ., was a limited one whether the appellate order of the Assistant Commissioner can be revised by the Commissioner under section 67 and in the light of hierarchical set up of the scheme of judicial subordination it was held that such revisional jurisdiction can be invoked to revise appellate order passed under section 65. But so far as the question of reexercise of revisional jurisdiction was concerned, the later Bench in terms approved the earlier decision of this Court pertaining to the consideration of the Saurashtra Ordinance. Thus, it is difficult for us to accept the contention of Mr. Nanavati that the later decision of this Court has taken a view which is contrary to the prior decision and that it has disagreed with the prior decision. In fact, if the later Division Bench had disagreed with the prior decision, it would have referred the matter to a larger Bench. On the contrary, it has explained the prior decision and has confined it to its own facts. The facts which arise for our consideration in the present case are practically similar to those which arose for consideration in the prior decision of this Court. Consequently, it is clear that once the revisional jurisdiction under section 67 was invoked by the Assistant Commissioner, acting as the Commissioner, then for the same subject-matter once again revisional jurisdiction could not be invoked as is tried to be done by the Deputy Commissioner by issuing the impugned notice. Thus, the impugned notice would be ipso facto without jurisdiction and would be null and void.

19. Mr. Nanavati, however, drew our attention to the two Supreme Court judgments in order to support his submission. Mr. Nanavati invited our attention to the decision in Gurbaksh Singh v. Union of India [1976] 37 STC 425 (SC).

20. In the aforesaid decision, the Supreme Court was concerned with the question as to whether the appellate order passed by the Assistant Commissioner of Sales Tax could be revised by the Commissioner of Sales Tax. The appellant before the Supreme Court was carrying on the business of execution of building contracts and was assessed to sales tax under the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi. An assessment was made by the Sales Tax Officer for the year 1955-56 by the order of assessment made on 23rd November, 1959. On appeal, the Assistant Commissioner held that the assessment of the first two quarters of 1955-56 was invalid, as having been made out of time and remanded the matter to the Sales Tax Officer by the order dated 11th February, 1960, for a fresh assessment in respect of the 3rd and 4th quarters. Accordingly, the Sales Tax Officer passed a fresh assessment order on 21st March, 1960. In the meantime, the Commissioner of Sales Tax in exercise of his power under section 20(3) issued a notice to the appellate on 21st July, 1960, and by his order dated 29th July, 1960, held that no part of the assessment for the year 1955-56 was barred and directed fresh assessment to be made. The Sales Tax Officer accordingly made fresh assessment on 24th September, 1960. The appellant challenged the revisional order passed by the Commissioner under section 20(3) and the subsequent fresh assessment order passed by the Sales Tax Officer on 24th September, 1960, on the ground that the appellate order of the Assistant Commissioner could not be revised by the Sales Tax Commissioner, in exercise of his power under section 20(3) as the Assistant Commissioner was the authority appointed to assist the Commissioner. Consequently, his order could not have been revised by the Commissioner. The learned single Judge of the Delhi High Court allowed the writ petition, but the respondent, the Union of India, succeeded in the Letters Patent Appeal before a Division Bench of the Delhi High Court and consequently, the original petitioner-appellant approached the Supreme Court in appeal by certificate granted by the Delhi High Court. In the aforesaid appeal, the Supreme Court held that when the Assistant Commissioner exercised appellate jurisdiction, his order was passed in exercise of his own appellate powers and such appellate order could be revised by the Commissioner in exercise of his own revisional powers under section 20(3) of the said Act. While taking the aforesaid view, the Supreme Court clearly laid down that different authorities acting under the Act could not be treated as Commissioner for the purpose of different powers exercised by different authorities. We fail to understand how the aforesaid decision in Gurbaksh Singh's case [1976] 37 STC 425 (SC) can help Mr. Nanavati. The question involved in Gurbaksh Singh's case [1976] 37 STC 425 (SC) before the Supreme Court was of the same type which was considered by the Division Bench of this Court in Special C.A. No. 351 of 1975. In Gurbaksh Singh's case [1976] 37 STC 425 (SC) the Commissioner of Sales Tax was not seeking to revise orders passed by his delegate in the exercise of his revisional jurisdiction, but he was seeking to revise the appellate order passed by the Assistant Commissioner in exercise of his independent appellate jurisdiction. Consequently, the ratio of Gurbaksh Singh's case [1976] 37 STC 425 (SC) can be no avail to Mr. Nanavati. Mr. Nanavati then drew our attention to another decision of the Supreme Court in State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144 (SC). In the aforesaid case, the respondent was assessed to sales tax on a certain turnover and his appeal to the Commercial Tax Officer for exclusion of certain items from the turnover was partly allowed. Thereafter the Deputy Commercial Tax Officer made a revised assessment on 28th November, 1952. Subsequently the respondent preferred a revision to the Deputy Commissioner of Commercial Taxes objecting to the inclusion in its turnover of a certain sum collected by it by way of tax. The respondent did not raise any other objection regarding the order of assessment of the Deputy Commercial Tax Officer or the Commercial Tax Officer. By his order dated 21st August, 1954, the Deputy Commissioner dismissed the revision petition. On 4th August, 1958, the Board of Revenue issued a notice to the respondent, proposing to revise the assessment of the Deputy Commercial Tax Officer by including in the net turnover a certain sum representing the value of cotton purchased by the respondent from outside the State of Madras, on the ground that it was wrongly excluded in the computation of the turnover. The question was whether the said revisional proceeding could be legally maintained. It was held by the Supreme Court in that case that the question regarding the exclusion of the value of cotton purchased from outside the State of Madras was not raised before the Deputy Commissioner and the only point raised before him was regarding the inclusion of the amount of tax collected by the respondent in the taxable turnover. The subject-matter of the revision proceeding before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer dated 28th November, 1952, and that the doctrine of merger was not a doctrine of rigid and universal application and it could not be said that wherever there were two orders, one by an inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there was a fusion or merger of the two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. There the question was whether the prior order passed by the Deputy Commercial Tax Officer on 28th November, 1952, merged with the order in revision by the Deputy Commissioner dated 21st August, 1954. If it was held that the order had merged, the revisional proceedings sought to be initiated by the Board of Revenue would not be time-barred. But if it was held to be not so merged, the revisional proceedings before the Board of Revenue would be barred by limitation. The Supreme Court held that there was no merger of the order of the Deputy Commercial Tax Officer in the order of the Deputy Commissioner and consequently the revisional proceedings were held to be time-barred. It is difficult to appreciate how this decision can help Mr. Nanavati. There is no question of any merger for our consideration. The submission of Mr.Kaji is to the effect that under section 67 of the Act once the power is exercised qua the same subject-matter, it cannot be re-exercised by any other officer purporting to act as the Commissioner qua the same subject-matter. The question of merger does not arise here. Consequently, the aforesaid decision of the Supreme Court is not of any real assistance to Mr. Nanavati. So far as the first submission of Mr. Kaji is concerned, we find that it is fully covered by the judgment of the Division Bench consisting of A. D. Desai and B. K. Mehta, JJ., in Special C.A. No. 1659 of 1972. Consequently, it must be held that the impugned notice seeking to again revise the prior order of the Assistant Commissioner is clearly without jurisdiction and is null and void.

21. Mr. Nanavati at the fag-end submitted that in this case the Deputy Commissioner is not seeking to revise any prior order of the Assistant Commissioner on the same subject-matter and that the subject-matter covered by the impugned notice is quite different. It is difficult to accept even this submission of Mr. Nanavati for the simple reason that the scope and ambit of the show cause notice seeking to revise the prior order has got to be found from the four corners of the show cause notice itself. A mere look at the show cause notice shows that according to the Deputy Commissioner of Sales Tax the prior order of the Assistant Commissioner passed in exercise of revisional powers was improper and illegal. Thus the said revisional order is sought to be re-revised by the impugned notice. The very wordings of the impugned notice put the matter beyond any controversy and show that the Deputy Commissioner sought to revise once again under the same section 67 the prior revisional order passed by the Assistant Commissioner under the same section for the same subject-matter. The prior revisional order was passed in the revisional proceedings taken up suo motu by the Assistant Commissioner against the order of the Sales Tax Officer pertaining to the tax liability for Samvat Year 2028. The question regarding the set-off was intricately connected with the question pertaining to the liability of the assessee under section 16 and the question of penal liability under section 45. Thus, it cannot be said that the impugned notice did not pertain to the same subject-matter. Under the circumstances, the aforesaid submission of Mr. Nanavati is liable to be rejected. In view of the aforesaid decision on the first submission of Mr. Kaji, it is not necessary to examine the merits of the second submission regarding the effect of the revisional order of the Sales Tax Tribunal and whether the order of the Assistant Commissioner had merged in the revisional order passed by the Sales Tax Tribunal. We express no opinion on this question.

22. In the result, this special civil application filed by the petitioner is required to be allowed and the impugned notice at annexure B seeking to revise the prior order of the Assistant Commissioner is held to be without jurisdiction, null and void and is therefore quashed. Rule is made absolute with costs.

23. Rule made absolute.


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