COMMISSIONER OF SALES TAX Vs. MOTOR MACHINERY

JUDGEMENT

(1.) This is a reference under section 66(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the said Act") and it arises an interesting question under section 57 of the said Act. The reference has been made at the instance of the Commissioner of Sales Tax and the question referred to us for our consideration is as follows :- "Whether on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the order of the Assistant Commissioner of Sales Tax passed in appeal is not open to suo motu revision by the Deputy Commissioner under section 57(1) of the Act ?"

(2.) The facts giving rise to the Reference are as follows :-

(3.) On 3rd December, 1962 the Respondent, a limited company, was assessed by the Sales Tax Officer for the period from 1-1-1960 at 31-3-1960. The Respondent inter alia manufactures and sells electric motors manufactured by it. The Respondent had collected sales-tax and general sales-tax on the sales of electrical motors at an aggregate rate of 5% treating the goods as falling under Entry No. 22 of Schedule 'E' to the said Act. The Sales Tax Officer, in making the assessment, followed the statutory determination made by the then Commissioner of Sales Tax under section 52 of the said Act in an earlier case and taxed these goods at 3% under entry No. 15 of Schedule 'C'. The surplus amount of tax which the assessee had collected was forfeited under the orders of the Sales Tax Officer. The assessee went in appeal before the Assistant Commissioner of Sales Tax against this order. Two points were agitated in that appeal, one of which was regarding the order of forfeiture passed by the Sales Tax Officer. The other contention was regarding the penalty levied by the Sales Tax Officer under section 36(1). The Assistant Commissioner set aside the order of penalty but so far as the order for forfeiture was concerned, confirmed the same. Against this order of the Assistant Commissioner dated 31st October 1963, the assessee went in second appeal before the Sales Tax Tribunal and while the second appeal was pending before the Tribunal, the Deputy Commissioner of Sales Tax (Adm.) II, Bombay City Division, issued a notice dated 2-8-1965 to the assessee under section 57 of the said Act in form No. 40 to the effect that he was proposing to revise suo motu the order of the Assistant Commissioner of Sales Tax, dated 31-10-1963. The Deputy Commissioner of Sales Tax ultimately passed an order revising suo motu the order of the Assistant Commissioner of Sales Tax at 5% under entry No. 20 of Schedule 'C' to the said Act. The assessee went in revision against this order of the Deputy Commissioner and challenged the authority of the Deputy Commissioner of Sales Tax to suo motu revise the order passed by the Assistant Commissioner of Sales Tax. The Tribunal took a view that the assessee should have filed an appeal and not a revision application and treated the revisional application filed by the assessee as an appeal. The Tribunal observed that there is no power in the Commissioner of Sales Tax to hear appeals against original orders passed by a Sales Tax Officer or any other officer subordinate to him. This power was invested in the Assistant Commissioner of Sales Tax. The Tribunal came to the conclusion that the power conferred by the said Act on an Assistant Commissioner by virtue of his office must not be confused with the power which are invested in the Commissioner of Sales Tax in the execution of his functions under the said Act and which the Commissioner is empowered to delegate to the Assistant Commissioner under sub-section (6) of section 20 of the said Act. On the basis of this reasoning, the Tribunal came to the conclusion that the Assistant Commissioner, in disposing of the appeal, could not be considered to be an officer appointed to assist the Commissioner and hence the Commissioner was not entitled to revise suo motu, under the power conferred on the Commissioner under section 57(1) of the said Act, an order passed by the Assistant Commissioner in disposing of a first appeal preferred to him under the provisions of section 55(1) of the said Act. It is the correctness of this view which is sought to be impugned by the Commissioner in this reference.