J C BUDHARAJA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE two appeals under section 23 (4) (c) (i) of the Orissa Sales Tax Act, 1947 (in short, 'the Act') involve the question whether the Commissioner of Sales Tax (in short, 'the Commissioner') can revise an order passed by the Assistant Commissioner of Sales Tax in exercise of powers of revision under rule 80 of the Orissa Sales Tax Rules, 1947 (in short, "the Rules" ). As this question has to be answered in the background of section 23 (4) (c) (i) of the Act and rule 80 of the Rules, detailed reference to the factual aspects would be unnecessary.

(2.) DISPUTE relates to assessment year 1988-89. By order dated September 14, 1989, assessment was completed under section 12 (4) of the Act. Another order was passed under rule 5 of the Orissa Additional Sales Tax Rules, 1975 (in short, "the Additional Rules") read with provisions of the Orissa Additional Sales Tax Act, 1975 (in short, "the Additional Act" ). Additional tax of Rs. 16,369 levied under the Rules was deposited on February 28, 1990. Since tax deducted at source was more than tax liability fixed at 4 per cent, an application for refund under section 14 read with rule 36 was filed on January 19, 1990. On August 11, 1992, suo motu revision in terms of rule 80 was initiated by the Assistant Commissioner only against order of assessment passed under the Act. By order dated September 18, 1992, the proceeding was dropped by a reasoned order by the Assistant Commissioner of Sales Tax, Puri Range, Puri. On May 12, 1993 O. J. C. No. 3773 of 1993 was filed for early disposal of refund application. On August 19, 1993, the said writ application was disposed of with a direction to dispose of the refund application within a month. Time was extended on an application moved by the Revenue till the end of November, 1993. On January 10, 1994, the Commissioner issued another notice under rule 80 of the Rules. Petitioner submitted his reply to the effect that once power of suo motu revision under rule 80 has been exercised by a delegates with powers of the Commissioner under section 27, the Commissioner does not possess residual power to be exercised by him. Reference was made to a decision of this Court in M/s. Orient Paper Mills v. State of Orissa [1988] 70 STC 333 to contend that the Commissioner cannot revise an order passed by delegates. The plea did not find favour with the Commissioner who passed the impugned order holding that order passed by the Assistant Commissioner dropping the proceeding under rule 80 was erroneous and he has power to revise an order passed under rule 80 by the delegates.

(3.) HOWEVER , learned Senior Standing Counsel for the Revenue submitted that a fresh look in the matter is necessary because of certain observations by the apex Court in State of Orissa v. Krishna Stores [1997] 104 STC 594 and Commissioner of Sales Tax, Orissa v. Halari Store [1997] 107 STC 579. It is also submitted that in the earlier cases the settled position in law that the delegator still retains the original power conferred on him was not considered. It is further stated that there has been no delegation of suo motu revisional power on the Assistant Commissioner. Learned counsel for the petitioner submitted that the decision in Krishna Stores' case [1997] 104 STC 594 (SC) has no relevance because the point involved related to the question whether the Commissioner of Sales Tax, suo motu can revise under clause (e) of sub-section (4) of section 23 of the Act read with rule 80, an appellate order passed by the Assistant Commissioner of Sales Tax. The apex Court decided that such power was available. In Halari Store's case [1997] 107 STC 579 (SC) it was observed that the expression "any order made under the Act" is of wide connotation and it includes both assessment and appellate orders. Coming to the question whether the said decisions have any relevance so far as the present case is concerned, it has to be noted that the aforesaid decisions have been rendered on an entirely different question and related to the jurisdiction of the Commissioner to suo motu revise the appellate order passed by the Assistant Commissioner. The decisions, therefore, have no application to the present dispute.