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The Assistant Commissioner of Commercial Taxes, Central Section and ors. Vs. Itco Private Limited - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Limitation
CourtKolkata High Court
Decided On
Case Number Appeal from Original Order No. 187 of 1966
Judge
Reported in[1974]35STC248(Cal)
AppellantThe Assistant Commissioner of Commercial Taxes, Central Section and ors.
Respondentitco Private Limited
Appellant Advocate P.K. Sen Gupta and ; S.N. Dutta, Advs.
Respondent Advocate N.C. Chakravarti and ; Paritosh K. Mukherjee, Advs.
DispositionAppeal allowed
Cases ReferredRam Kanai Jantini Ranjan Pal Private Ltd. v. Member
Excerpt:
- salil kumar datta, j.1. this is an appeal against the judgment and order of d. basu, j., dated 1st march, 1966, in civil rule no. 693w of 1962 whereby the rule was made absolute.2. the facts as stated in the petition in brief are as follows: the petitioner, a private limited company at the material time, had been carrying on the business of dealer in tea and was registered as a dealer under the bengal finance (sales tax) act, 1941 (hereinafter referred to as the said act), holding certificate of registration bearing no. cr/2343a. the petitioner was registered in the canning street charge which was renamed in 1958 as the china bazar charge. the petitioner duly filed its returns and its assessments up to and including four quarters ending on last day of chaitra 1367 b. s. (13th april,.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal against the judgment and order of D. Basu, J., dated 1st March, 1966, in Civil Rule No. 693W of 1962 whereby the rule was made absolute.

2. The facts as stated in the petition in brief are as follows: The petitioner, a private limited company at the material time, had been carrying on the business of dealer in tea and was registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act), holding certificate of registration bearing No. CR/2343A. The petitioner was registered in the Canning Street Charge which was renamed in 1958 as the China Bazar Charge. The petitioner duly filed its returns and its assessments up to and including four quarters ending on last day of Chaitra 1367 B. S. (13th April, 1961), were made and completed by the Commercial Tax Officer, China Bazar Charge. The assessment for four quarters ending on last day of Chaitra 1364 B. S. (13th April, 1958), was heard on 13th October, 1958, when the petitioner produced all his books of account. The petitioner's taxable turnover was computed on 26th November, 1958, at Rs. 1,31,931.00 and tax was determined at Rs. 6,423.21 and a penalty of Rs. 50.

3. In the end of October, 1962, the petitioner received a letter dated 29th October, 1962, issued by the Commercial Tax Officer, Central Section, West Bengal (respondent No. 3), stating that the petitioner's files under the said Act as also under the Central Sales Tax Act, 1956, had been transferred to the Central Section and that the said officer had assumed jurisdiction for all the assessments and ancillary matters under both the Acts. The petitioner was also advised that all pending matters would be taken up by the said respondent on dates fixed unless otherwise directed.

4. On 3rd November, 1962, the petitioner received a notice in form IX with a copy of report dated 1st November, 1962, by respondent No. 4, issued by the Assistant Commissioner of Commercial Taxes, Central Section, West Bengal, respondent No. 2. The notice is as follows :

No. 8764 dated 2nd November, 1962. Revision Case No. 98-4/1962-63.

Form IX (See Rule 79)

To

Messrs. Itco Private Ltd. (Dealer).

4, Raja Woodmunt Street (Address).

Calcutta.

(R. C. No. CR/2343A)

Whereas it is proposed to pass an order to the effect mentioned below, you are hereby informed that if you wish to prefer any objection against such order you should attend either personally or by authorised agent for that purpose at the office of the undersigned at 10 A. M. on the 19th day of November, 1962. K.C. Saha,Assistant Commissioner, Commercial Taxes,Dated 2nd November, 1962. Central Section, Bengal (West).

5. Gist of the order proposed to be passed :-In view of the facts stated in the report dated 1st November, 1962 (copy enclosed), of the Commercial Tax Officer, Central Section, there are good and sufficient reasons to believe that the taxable turnover of the period of 4 quarters ended Chaitra 1364 B. S. was very much under-assessed in the order of assessment dated 26th November, .1958, of the Commercial Tax Officer, China Bazar Charge. Accordingly, the taxable turnover in respect of the said period is proposed to be enhanced to Rs. 6,50,000. Also the penalty of Rs. 50 imposed in the original assessment is proposed to be enhanced to Rs. 1,000.

6. The report was described as an application under Rule 82 of the Bengal Sales Tax Rules, 1941, for revising the order of assessment passed by the Commercial Tax Officer, China Bazar Charge, for 4 quarters ending with Chaitra 1364 B. S. The report stated that it appeared from some sources not disclosed that the petitioner had been adopting various ways since considerable time including change of constitution of the firm from partnership to company for evading taxes. It Prima facie appeared that the points of information were true and all attempts for the search of books of account for 1364 B. S. were unfruitful, as the books for the year 1364 B. S. were not to be found and notice under Section 14(1) was not complied with. It was further stated that the accounts submitted were discrepant and incorrect and the books at the time of assessment were test checked while the basis of assessment was not clear. The Commercial Tax Officer accordingly arrived at the conclusion that the dealer was under-assessed. The information referred to evasion for a considerable period, but as revision for any period before 1364 B. S. was barred by limitation, the application was made for 1364 B. S. only. The Commercial Tax Officer further stated that the order of assessment needed modification, but as he was not competent to review the order of his predecessor in terms of Rule 82, he was submitting the application for revision of the assessment in terms of Section 20(3) of the Act read with Rule 80(5).

7. The petitioner objected to the assumption of jurisdiction by the Assistant Commissioner to revise the assessment contending that the proposed action was without any authority of law and was in violation of the fundamental rights guaranteed by the Constitution. By further representations the petitioner submitted that the Commercial Tax Officer, Central Section, had no authority to deal with its files and the Commercial Tax Officer, China Bazar Charge, who was the appropriate Commercial Tax Officer, had no authority to transfer the files and such transfer was illegal, void and ultra vires the Act. In reply the petitioner was informed by the Assistant Commissioner of Commercial Taxes, Central Section, respondent No. 1, that he was competent to issue the notice under form IX and the revision proceeding which was not bad or illegal, was fixed for hearing on 19th November, 1962.

8. The petitioner contended that the purported proceeding taken by the Assistant Commissioner of Sales Tax, Central Section, West Bengal, was barred by limitation and the law did not authorise reassessment in the garb of revision, which was not of his own motion but was at the instance of the Commercial Tax Officer, Central Section. The alleged report was based on guess work and the rules do. not provide for making an application for revision by the State or any officer of the Directorate. Further, there was no valid delegation of his powers by the Commissioner of West Bengal. It was also the contention that the transfer of the files was illegal, invalid and ultra vires and even the creation of the Central Section is ultra vires the Act and the Constitution of India.

9. On these allegations and contentions the petitioner moved this court under Article 226(1) of the Constitution, inter alia, for a writ in the nature of certiorari quashing the impugned notice in form IX as also the proceeding based thereon and also for a writ in the nature of prohibition forbearing the respondents from proceeding further in the matter. There was also a prayer for a writ in the nature of mandamus forbearing the Commercial Tax Officer, Central Section, from taking charge of the petitioner's files. On this application this court issued a rule on 19th November, 1962, being Civil Rule No. 693H of 1962, in terms of the prayer.

10. The respondents contested the rule by filing two sets of affidavit-in-opposition on behalf of the Commercial Tax Officer, Central Section, respondent No. 3, and the Commercial Tax Officer, China Bazar Charge, respondent No. 5, urging similar contentions to the effect that all actions taken were in accordance with law. Respondent No. 5 stated that on the date of hearing on 13th October, 1958, the petitioner produced some of the documents and he made the assessment on 26th November, 1958. The deponents also craved leave to refer to the original order of assessment at the hearing.

11. The petitioner filed two affidavits in reply to the above affidavits, reiterated his contentions made in his petition, denying in particular, that respondent No. 3, the Commercial Tax Officer, Central Section, was the 'appropriate Commercial Tax Officer' in respect of the petitioner. It was further denied that the said officer on that date had any competency or authority to assume charge of the petitioner's files. It was also contended that the report was to be treated as application for revision which was barred by time.

12. There was a supplementary affidavit-in-opposition on behalf of the Commercial Tax Officer, Central Section, stating further that he filed on 1st November, 1962, an application under Rule 82 of the Bengal Sales Tax Rules to the Assistant Commissioner of Commercial Taxes for revising the assessment order dated 26th November, 1958, under Section 20(3) of the Act whereon the impugned notice in form IX was issued. The Assistant Commissioner, on vacation of the interim order, passed on 24th November, 1962, an order revising the assessment order of 26th November, 1958. This order was set aside by the Additional Commissioner on 11th February, 1964. The petitioner preferred an appeal to the Board of Revenue against this order, (sic) before the Board of Revenue which was pending but these authorities had not been made parties to the rule, which accordingly became infructuous. In its affidavit-in-opposition the allegations were disputed by the petitioner, but it appears that the said authorities were made parties to the rule.

13. The rule came up for hearing before D. Basu, J., who, on hearing the parties, came to the conclusion :

(I) Section 20(3) confers on the Commissioner upon application or of its own motion the power to revise any assessment or order made under the Act or its Rules by any person appointed to assist him. An application for revision can be made by a dealer as also by an inferior officer in the department itself, and there is no prohibition against an application being made by an inferior officer of the department. Sub-rule (3) of Rule 80 makes provisions only when the application for revision is to be made by a dealer. The provisions of Sub-rules (1) and (2) of Rule 80 are general provisions and are applicable to an application made either by a dealer or any other person. Further it was obvious that the officer in question made his application under Rule 82 as he was not empowered to revise the order of his predecessor. The proceeding thus being initiated on application, Sub-rule (2) of Rule 80 would be applicable which provides for a limitation of 60 days so that the impugned proceeding is clearly time-barred. The position would have been otherwise if the proceeding was initiated by the Commissioner suo motu when Sub-rule (5) would be applicable which provides for four years limitation and the connected proceeding in that event would suffer from no infirmity regarding limitation. The benefit of the proviso to Rule 80(2) for condoning the delay in presenting the application for sufficient reason was neither claimed nor urged at the hearing.

(II) The court however held on the other branch of argument on limitation that in view of the second proviso to Section 11 (2a), it could not be said at that point of time that the fresh assessment is barred by limitation. Liberty was however given to the petitioner in case the final order of assessment was not eventually completed within the period of four years.

(III) After discussing the relevant provisions the court was of the opinion that the validity of the creation of the Central Section having jurisdiction over the whole of Bengal could not be questioned. The transfer of the petitioner's case from China Bazar to the Central Section by the order of October, 1962, was validated by the Amendment Act of 1962, which was given retrospective effect. The court however found accepting the contention of the petitioner that there was in fact no such order passed by the Commissioner nor there appeared to be any delegation of power to the Commercial Tax Officer. There could be no such transfer merely by creation by Government notification the concurrent jurisdiction of the Commercial Tax Officer, Central Section, and the observation in Madanlal Mahawar v. Commercial Tax Officer, Central Section [1965] 16 S.T.C. 1071, that no order of transfer was necessary was merely an obiter. This proposition is supported by the Amendment Act of 1962 itself, which was made retrospective. Accordingly, the transfer purported by the Commercial Tax Officer, China Bazar, as well as the assumption of jurisdiction by the Commercial Tax Officer, Central Section, over the petitioner's case was ultra vires.

(IV) In regard to the contention that the order of assessment by the Commercial Tax Officer, China Bazar Charge, was to be deemed to be the order of the Commissioner, on the established proposition of law that the order of the delegatee is to be deemed to be the order of the principal, it was held that in the instant case, the legislature by providing a hierarchy of authorities in the Act, has expressly overridden the said general proposition.

(V) On the petitioner's contention that the power of revision cannot be utilised for enhancing the taxable turnover by bringing into account the alleged escaped turnover as sought to have been done, the court held that where there is express or special provision in a statute to deal with the escapement of income, such power can only be exercised by such special provision, but not by the general power of revision or appeal. There is however no such provision in the Bengal Act with which we are concerned and, accordingly, particularly in view of the widest possible words that 'the Commissioner may revise any assessment made', there is no warrant for imposing any limitation save those expressly made in the statute. Since the legislature has not circumscribed revisional or appellate powers, the power conferred by Section 20(3) is not subject to any limitation save the procedural limitation under the provisos. This view is strengthened by Rule 80A of the Bengal Sales Tax Rules, which empowers the revising and appellate authority 'to make such enquiry ..as it may think fit'. The court further held that a provisional order before hearing the petitioner, common in administrative proceeding, did not show that the authority foreclosed its mind and there was no substance in the contention that there was thereby a failure of natural justice.

(VI) The court also rejected the contention of the revenue that the alternative remedy operated as a bar.

14. The rule accordingly, on ground of jurisdiction and limitation, was made absolute and the impugned order of the Additional Commissioner of Commercial Taxes dated 3rd November, 1962, was quashed and respondents Nos. 1 to 4 were prohibited from proceeding further in pursuance of that order. The propriety of this decision has been challenged in this appeal. The contention of the revenue that alternative remedy was a bar to the initiation of the proceeding under Article 226(1) does not merit consideration, particularly when a question of jurisdiction of the authority to issue the impugned order is involved. In fact it has not been and cannot be seriously contended that the application was not maintainable in law.

15. Mr. Provat Kumar Sen Gupta appearing with Mr. S. N. Dutta, the learned Advocates on behalf of the appellants, produced before us the entire record of the case. It appears therefrom that there was in fact an order of the Commissioner dated 24th October, 1962, transferring the files to the petitioner from the jurisdiction of the Commercial Tax Officer, China Bazar Charge, to the Central Section under the Taxes Directorate, West Bengal, and an application for production of this order as an additional evidence in the appeal was filed by the appellants which was seriously objected to by the petitioner. The order impugned in this rule foundered on the finding that no such order was in existence. We felt that the copy of the said order should be on record to enable us to pronounce judgment in the appeal. Accordingly, we allowed the application and further directed that photostat copy of the said order of the Commissioner should be filed in view of the allegations of interpolations. In pursuance thereof the appellants filed a photostat copy of the said order. The petitioner was also given opportunity to examine the original records of the case in court and the records were duly examined by Mr. N. C. Chakravarti and Mr. Paritosh Mukherjee, the learned Advocates for the petitioner-respondent. Though there is no such allegations in the affidavit-in-opposition on behalf of the petitioner, an allegation was made on its behalf that there were interpolations in respect of Memo No. 14342/1/CT dated 24th October, 1962, in that by hand and also in typewriting, it was written that steps should be taken so that the proceeding initiated to revise the assessment be not time-barred. According to Mr. Chakravarti, there was at that point of time no proceedings initiated against the petitioner. This allegation appears to be without basis, as the records indicated, which were before us in terms of the rule, that the proceeding was initiated much earlier and as the records indicated, there was in fact no interpolation as alleged.

16. The relevant order of 24th October, 1962, is as follows :

As it is considered necessary to have a thorough investigation in respect of the dealer, M/s. Itco Private Ltd. of 4, Raja Woodmunt Street, Calcutta, I do, hereby, transfer the files of the aforesaid dealer under both the Bengal Finance (Sales Tax) Act, 1941 (Registration Certificate No. CR/2343A) and the Central Sales Tax Act, 1956 (R. C. No. 55A/CR Central) from the jurisdiction of the Commercial Tax Officer, China Bazar Charge, to the Central Section under the Commercial Taxes Directorate, West Bengal, for taking all necessary action under the aforesaid Acts.

Sd./- S. K. Bose,

Commissioner, 24-10-62.

17. It is unfortunate and indicates inexcusable carelessness on the part of the legal advisers of the departments in not producing the order at the hearing of the rule. It is thus obvious that the first ground that there was no valid order of transfer is not tenable in view of the existence of the said order quoted above.

18. There can now be no dispute that in view of the provisions of Sub-section (2A) to Section 3 of the Bengal Act, which was inserted with retrospective effect by the West Bengal Amendment Act 17 of 1962 and brought into force on 15th December, 1962, preceded by an Ordinance promulgated on 22nd September, 1962, the Commissioner has been duly empowered to pass the order of transfer of any case from one person appointed under Sub-section (1) to another so appointed. This Act also validated any action taken earlier as such order, as was noticed in Madanlal Mahawar v. Commercial Tax Officer, Central Section, West Bengal [1965] 16 S.T.C. 1071 at 1081, was to be deemed to be and to have always been validly made as if that Act were in force at the time the order was made.

19. A point was made by Mr. Chakravarti contending that the power delegated under Section 15 of the Act read with Rule 71 by the Commissioner to the Assistant Commissioner to revise an order passed by the Commercial Tax Officer became infructuous or non est as the then Commissioner M. M. Basu had long vacated the office before the impugned notice or even the order of transfer was issued. This contention is without any substance. A similar contention was raised in Gayadinram v. A.D. Khan (1961) 55 C.W.N. 667, wherein it was held that the delegation was not made in personal capacity but in official capacity. It was further observed that individuals may go and come but the statutory office remains unless the corporation itself ceases to exist. In the absence of revocation which could be done, the successor-in-office must be deemed to have accepted and approved of the delegation made by the predecessor. This decision was followed in Sambhu Das Pyne v. Corporation of Calcutta A.I.R. 1972 Cal. 273, in which I was a party. It is not the case that the delegation has been revoked or the office of the Commissioner has ceased to exist. We respectfully agree with the view in Gayadinram's case1 and are of the opinion that all actions taken by an erstwhile Commissioner in his official capacity are valid and continue as if the same are the own acts of his successor-in-office under the authority of law unless revoked or otherwise modified or abrogated.

20. While supporting the judgment under appeal Mr. Chakravarti contended that unlike the other similar statutes in other States, the Bengal Sales Tax Act does not contain any provision for assessment of turnover which had escaped assessment. Our attention was drawn to the relevant sections of the statutes of other States, in particular to Section 11A of the sales tax law under Delhi Amendment of the Bengal Act, the provisions whereof were extended to Delhi, which provides express and specific provisions for assessment of escaped turnover. There is no similar provision in the Bengal Act as those contained in the said Section 11A. It was accordingly contended with great force that under the sales tax law in West Bengal there is no legal warrant for assessment of escaped turnover, though it is also the case that there was no turnover in respect of the petitioner which had escaped assessment.

21. Mr. Sen Gupta submitted that the petitioner not having filed any cross-objection against the judgment under appeal should not be granted leave to urge this point. It is to be remembered that a respondent is competent to urge other grounds in support of the judgment under appeal, and even grounds against it provided that such contention if succeeds will not in any way affect the order or decree under appeal. In this present case, if Mr. Chakravarti succeeds in his contention, such success will not alter or modify the order impugned before us and at the highest it may be another pillar supporting the order and, accordingly, we do not think there is no legal impediment in Mr. Chakravarti's objection, and Mr. Sen Gupta's contention is accordingly overruled.

22. There is no dispute that under the Bengal Act, there is no express provision for assessment of escaped turnover as in the Acts of other States. Absence of such provision is the basis of Mr. Chakravarti's contention that the power of revision does not warrant an enhancement of the turnover as is sought to be done in this case. If there is any provision for assessment of escaped turnover, such provision, it is needless to mention, will have to be followed for the purpose. When there is no such provision, as in this case, and a power of revision is conferred on the authority, it is to be seen if the power of revision so conferred is circumscribed for particular purposes or in any way restricts assessment of escaped turnover. If there is no restriction, there should be no reason to think that even then the appropriate authority is incompetent or has no jurisdiction to assess any escaped turnover. The question was elaborately considered by the Reference Bench of this Court in the decision in Ram Kanai Jantini Ranjan Pal Private Ltd. v. Member, Board of Revenue, West Bengal [1970] 26 S.T.C. 489, and it was observed by P.B. Mukharji, C. J., assuming as contended that under the laws of other States specific provisions have been made for escaped turnover, as follows :

This reference must be governed by the Bengal Act and the Rules made thereunder. The language of the statute here and the Rules here are the governing factors. Section 20(3) of the Bengal Act makes it clear that the Commissioner in revision can revise any assessment or order passed. There will be no justification to qualify this power by saying that he cannot revise to bring in escaped assessment. This will be more than a very logical conclusion specially in the context of the Bengal Sales Tax Act because under this Act no right of appeal or revision is given to the revenue, but such rights are given only to the dealer or the assessee. The language of Section 20 saying 'any dealer may in the prescribed manner appeal to the prescribed authority', etc., makes it plain. Even under Section 21 of the Bengal Act the revenue cannot call for a reference either. What happens then where obviously an assessment or an order has been made which is prejudicial to the revenue Who can correct it The compelling answer is, the power of revision is in the Commissioner under Section 20(3) to revise any assessment made or order made.

23. Even apart from the conclusion therein that the revenue has no power to apply for revision of an order of assessment, on which elaborate arguments were made, which we shall presently consider, we are in respectful agreement with the above proposition of law in regard to the powers of revision. Under the Bengal Act, even though there is no provision for assessing escaped turnover, the power of revision conferred on the Commissioner is of widest amplitude, as also held in the judgment under appeal, and such power cannot be circumscribed or limited so as to exclude assessment of escaped turnover which will be contrary to the clear and unambiguous provisions of Section 20(3) of the Bengal Act set out hereunder :

Section 20. (3) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assessment made or order passed under this Act or the Rules thereunder by a person appointed under Section 3 to assist him, and subject as aforesaid, the Board of Revenue may, in like manner, revise any assessment made or order passed by the Commissioner...

24. The other incidental and necessary steps for enforcing the provisions quoted above are provided in Section 14 of the Act and various steps mentioned therein are 'for the purposes of the Act', which includes action under Section 20(3).

25. Mr. Chakravarti has contended that an opinion given by the court on a reference under Section 21 on a question is at large before for examination by us. We have already indicated that we are in complete agreement with the view in Ram Kanai's case1, as indicated above. We also do not find any warrant for the contention that the opinion of the court on reference has not that conclusiveness on questions of law answered by it as the judgments in other cases. In fact under Sub-section (5) of Section 21, the High Court is required to deliver judgment containing grounds on which the judgment is based while deciding the question of law. This contention raised by the respondent is thus clearly untenable.

26. The last question relates to the question of limitation and it is connected with the further question if under the law the revenue is entitled to make application for revision. If the Assistant Commissioner in this case is held to have taken action suo motu for revision of assessment, Sub-rule (5) of Rule 80 will be applicable. This sub-rule provides a limitation for four years from the date of assessment for revision of such assessment and clearly the impugned notice in form IX dated 2nd November, 1962, when the assessment order was completed on 26th November, 1958, is within time. If, however, it is held that the revenue has no right to apply for revision of the order at all, the impugned proceeding can only be, and, as the terms of the notice also indicate, must be held to have been initiated suo motu. In Ram Kanai's case [1970] 26 S.T.C. 489 there is an observation that the revenue has no right to apply for revision which was an additional ground for holding that the power of revision conferred by the statute is without limitation. While Mr. Sen Gupta has contended on reference to the relevant rules that no right is conferred on the revenue to apply for revision, Mr. Chakravarti has contended, on the other hand, relying on the reasonings in the judgment under appeal that such power is conferred on the revenue also. The learned Judge was of the view that Sub-rules (1) and (2) of Rule 80 provide the general provisions applicable to applications either by the dealer and the revenue while Sub-rule (3) provides the form and procedure in respect of applications by the dealer. This view appears to us to be untenable, as the special provisions in Sub-rule (3) is confined to application by a dealer for revision of an order passed on appeal against an order of assessment or penalty or both and not applicable against original assessment or orders. Rule 80(1) provides that provisions of Rules 76 and 77 shall apply mutatis mutandis to application for revision and review. The proviso thereto contains further provision that Sub-clause (a) of Clause (iii) of Rule 76 shall apply only to orders of assessment made under Section 11 of the Act. There is no other provision in respect of this sub-clause so that if it was the intention that the right to apply for revision was available to the revenue, there would have been appropriate provision in respect of application for revision by the revenue. Rule 80B which provides for stay of recovery of taxes not admitted by the assessee to be due from him pending a review application would also be inapplicable if the revenue is the applicant. Strong emphasis was however put by Mr. Chakravarti on the provision of Rule 82, which is to the following effect :

82. No officer below the rank of Commissioner shall review any order which was been passed by any of his predecessors-in-office; if it is considered necessary to modify any such order application for revision is to be made to the next higher authority.

27. It was contended that the provision clearly indicates that the right of revision is conferred on the revenue. Mr. Sen Gupta contended that this rule is a special provision and is confined only to the orders passed by the Commissioner. In our opinion also this rule is a special provision which is confined to the orders of the Commissioner and as its terms indicate it cannot be extended to any order which is not passed by the Commissioner. Further, the power to modify the order under Rule 82 is connected with the power to review an order of the Commissioner and application for revision has been provided only in connection therewith.

28. Mr. Chakravarti has drawn our attention to the application annexed to the impugned notice, also described by the Assistant Commissioner as the report of the Commercial Tax Officer, Central Section, West Bengal. This officer describes his report as an application under Rule 82, which is obviously misconceived, as the said rule, as we have seen, relates to orders passed by the Commissioner himself. The statements made in his report that the assessment order needs modification which he is not empowered to do are based on a misconception of Rule 82 and the assertions by a Government Officer of his interpretation of a rule will not alter the basic position in law. Further upon a careful consideration of the provisions of the Act and its Rules we are of the opinion in disagreement with the view of the learned Judge that no right to apply for revision as contemplated in Section 20(3) of the Act is conferred on the revenue and accordingly the initiation of the proceeding being suo motu is not barred by limitation.

29. As to the observations made by the learned Judge against the 'final' order of assessment, if made, we do not think that we need express any opinion. If the petitioner has any grievance sustainable in law against the order of 'final' assessment, no liberty to move against the same is required to be given by the court.

30. In the view we have taken the appeal succeeds and is allowed and the judgment and order under appeal are set aside and the rule is discharged. There will be no order for costs in the circumstances and all interim orders are vacated.

31. As prayed for by Mr. Mukherjee, the learned Advocate for the opposite party, let the operation of this order be stayed for eight weeks from date.

B.C. Ray, J.

32. I agree.


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