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Sardar Amar Singh and ors. Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ petition No. 736/66
Judge
Reported in1970WLN178
AppellantSardar Amar Singh and ors.
RespondentThe State of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredJaipur v. Messrs. Chhagan Mal Bastimal of Beawar
Excerpt:
.....to the assessee as it thinks fit. their lordships were clearly of opinion that since the right of appeal against the order was available to the dealer and he did not prefer any appeal against the impugned order, the board had no jurisdiction to entertain the revision application. in this view of the matter, i fee that the alternative remedy which was available to the petitioners was not availed of by them and they went directly to the revising authority which had no jurisdiction to entertain the revision petition and, therefore, this court would not like to decide the question that has been raised by the petitioners about the correctness of the period of limitation as decided by the revising authority because no purpose can be served by deciding that question as the revisional..........expired, or, in the case of an appeal to the appellate tribunal, the assessee has not waived his right of appeal.clauses (b) and (c) are irrelevant for the decision of the present preliminary objections and, therefore, they are not being reproduced here.5. according to the learned counsel for the petitioner the right to file a revision application before the commissioner is a vested right of an assessee and that right can be exercised by him even if he failed to prefer an appeal against the assessment order under section 48 of the act. he also contended that the proviso to sub-section (2) of section 52 of the act places an embargo on the right to file a revision only when the asseesee had a right to file an appeal but the time prescribed for that appeal has not expired. according to.....
Judgment:

V.P. Tyagi, J.

1. This writ application has been filed by Sardar Amar Singh and 12 others under Article 226 of the Constitution praying that the assessment orders passed against the petitioners under the Rajasthan Agricultural Income-tax Act for the years 1964-55.1955-56, 1956-57, 1957-58, 1958-59 and 1959-60 marked Exs. 2 to 7 be quashed and by issuing a writ of certiorari or any other appropriate writ, direction the order passed by the Additional Commissioner, Commercial Taxes, Rajasthan dated 1.1.1966 dismissing the revision applications be set aside and he may be directed to dispose of the 6 revision applications filed by the petitioners before the said officer in accordance with the law.

2. The agricultural Income-tax officer assessed the petitioners under the provisions of the Rajasthan Agricultural Income Tax Act, 1953 (hereinafter to be referred as the Act) for the assessment years 1954 55 to 1959-60. The petitioners did not prefer any appeal against the said assessment orders before the Assistant Commissioner under Section 18 of the Act. The assessment orders and the demand notices were served on the petitioners on 8th December, 1961. The petitioners preferred to challenge the correctness of the said assessment orders by filing 6 different revision petitions before the Commissioner. These revision petitions came up for disposal before the Additional Commissioner, who by his order, dated 1-1-1966 dismissed all these revision petitions declaring them to be barred by time It is against this order of the Additional Commissioner Commercial Taxation Department, Rajasthan, that this writ petition has been preferred by the petitioners.

3. Learned Deputy Government Advocate appearing on behalf of the respondents has raised two preliminary questions in this writ petition: (1) that the petitioners could not prefer a revision-petition before the Commissioner Commercial Taxation Department, Rajasthan, under Section 52(2) because they did not prefer to file an appeal against the assessment orders before the Assistant Commissioner, and (2) that the writ petition suffers from misjoinder of causes of action. It is contended that for each year a separate writ petition should have been filed by the petitioners for each assessment year because the Agricultural Income tax Officer passed separate orders assessing the petitioners for each assessment year and the Petitioners also preferred to file 6 revision petitions against each assessment order before the Commissioner, Commercial Taxation Department, Rajasthan According to the learned Deputy Government Advocate these revision petitions, though were disposed of by one common order passed by the Commissioner, yet separate cause of action in respect of each assessment year accrued to the petitioners on the dismissal of each revision petition before the Commissioner.

4. In order to decide the first preliminary objection raised by the learned Deputy Government, it will be convenient to reproduce the provisions of the law under which the revision applications were preferred by the petitioner before the Commissioner. Section 52(2), under which these revision applications were filed, reads as follows.:

The Commissioner may, on application by an assessee for revision of an order under this Act passed by any agricultural Income-tax Officer made within one year from the date of the order, or within such further period as the Commissioner may think fit to allow, on being satisfied that the assessee was prevented by sufficient cause from making the application within that period, 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 assessee, as he thinks fit:

Provided that the Commissioner shall not reverse any order under this sub section if--

(a) Where an appeal against the order lies to the Assistant Commissioner or to the Appellate Tribunal but has not been made, the time within which such appeal may be made has not expired, or, in the case of an appeal to the appellate Tribunal, the assessee has not waived his right of appeal.

Clauses (b) and (c) are irrelevant for the decision of the present preliminary objections and, therefore, they are not being reproduced here.

5. According to the learned counsel for the petitioner the right to file a revision application before the Commissioner is a vested right of an assessee and that right can be exercised by him even if he failed to prefer an appeal against the assessment order under Section 48 of the Act. He also contended that the proviso to Sub-section (2) of Section 52 of the Act places an embargo on the right to file a revision only when the asseesee had a right to file an appeal but the time prescribed for that appeal has not expired. According to the interpretation put by the learned counsel on Clause (a) of the proviso to Sub-section (2) of Section 52, the right to file a revision before the Commissioner is available to the petitioner even if the did not file an appeal after the period of limitation prescribed had expired.

6. I regret, I cannot accept the interpretation put by learned counsel for the petitioners on Clause (a) of the proviso to Sub-section (2) of Section 52. In my opinion, the proviso to Sub-section (2) of Section 52 of the Act speaks of three circumstances under which an assessee cannot invoke the revisional jurisdiction of the Commissioner and they are:

1. Where the appeal against the assessment order passed by the assessing authority lies to the Assistant Commissioner;

2. Where the appeal lies but no appeal is filed and the time for filing such an appeal has not expired;

3. Where the appeal lies to the Appellate Tribunal and the assessee has not waived his right to file such an appeal before such Tribunal.

7. This first circumstance under which an assessee is debarred from filing a revision application before the Commissioner is when he has a right to file an appeal but that right has not been availed of by him The assessee also cannot exercise that right of revision when the law provides for an appeal before the Assistant Commissioner but no appeal has been filed and there was still time to file such an appeal. The interpretation that this proviso debars an assessee to file a revision application only during the period of limitation prescribed for filing an appeal cannot be sustained because the language of the proviso is very clear and it says that where the appeal against the order passed by the assessing authority lies to the Assistant Commissioner, the assessee shall not have a right to invoke the revisional jurisdiction. The Commisioner Under Section 52 of the Act has a jurisdiction to entertain the revision application at the instance of the assessee only when the conditions embodied in Clause (a) of the proviso to Sub-section (2) of Section 52 did not come in the way of the assessee to invoke such a jurisdiction of the Commissioner. If anyone of these conditions is present in any case, then the right of revision is lost. In the present case the assessee did not prefer any appeal against the assessment orders before the Assistant Commissioner under Section 48 of the Act and, therefore they had forfeited their right to invoke the revisional jurisdiction under Sub-section (2) to Section 52 of the Act. I am fortified in my view by a division Bench Judgment of this court in Commercial Taxes Officer. Special Circle, Jaipur v. Messrs. Chhagan Mal Bastimal of Beawar, in D.B. Civil Sales Tax Reference No. 15 of 1968, decided on 22nd October 1969. In that case Section 14 of the Rajasthan Sales Tax Act came up for consideration before the court which empowers the Board of Revenue to revise the order of the subordinate authority. Under Sub-section (2) of Section 14, the Board of Revenue, may on application for revision of an order not being an order passed under the proviso to Sub-section (3) of Section 11 by a dealer 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 and after examining the record subject to the provisions of that Act, pass such order not prejudicial to the assessee as it thinks fit. A proviso was added to that sub section in the following terms:

Provided further that no revision under this sub-section shall be entertained upon the application of a dealer

(a) if he could have appealed under Section 13 and no appeal has been filed by him or if the appeal is pending before the appellate authority.

The assessing authority in that case had imposed a penalty and the dealer did not prefer any appeal against the imposition of penalty and went directly to the Board of Revenue under the provisons of Section 14(2) of the Rajasthan Sales Tax Act. The question arose before the Court whether in view of the proviso referred to abovet he Board has jurisdiction to entertain the revision petition even jurisdiction if no appeal was preferred against the said order by the dealer. Their Lordships were clearly of opinion that since the right of appeal against the order was available to the dealer and he did not prefer any appeal against the impugned order, the Board had no jurisdiction to entertain the revision application. In the present case also Clause (a) of the proviso, though couched in a different language, puts same restriction on the assessees in the matter of prefering revision application which Section 14(2)'s proviso of the Rajasthan Sales Tax Act, provided. In the instant case the petitioners had a right to file an appeal against the assessment order but they did not choose to go in for an appeal. Their case, therefore, shall fall under the proviso (a) which lays down in very clear terms that where an appeal against the order lies to the Assistant Commissioner or to the Appellate Tribunal but has not been made, the Commissioner could not revise any order under this sub-section. In this view of the matter, I fee that the alternative remedy which was available to the petitioners was not availed of by them and they went directly to the revising authority which had no jurisdiction to entertain the revision petition and, therefore, this Court would not like to decide the question that has been raised by the petitioners about the correctness of the period of limitation as decided by the revising authority because no purpose can be served by deciding that question as the revisional authority could not revise the assesment orders passed by the Agricultural Income Tax Officer and hence no direction can be issued in this writ petition to the revising authority.

8. In view of the matter the present writ petition is dismissed with costs.


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