(1.) THE petitioner who was at the relevant time registered as the dealer under the Assam Finance (Sales Tax) Act, 1956, was assessed to tax under the aforesaid Act for the period ending September 30, 1971, March 31, 1972, September 30, 1972, March 31, 1973, March 31, 1974, September 30, 1974, March 31, 1975 and September 30, 1975 at nil rate by orders of assessment passed by the competent authority under the Act. Thereafter by eight separate notices dated June 14, 1978 and June 15, 1978, the aforesaid assessments were sought to be reopened by invoking the powers under section 11 of the Act. As there was some delay on the part of the petitioner in submitting his reply to the aforesaid notices, the concerned authority proceeded to finalise the proposed reassessments and accordingly levied tax on the petitioner. Against the aforesaid orders of reassessment, the petitioner filed appeals under the provisions of the Act and as the appeals were not entertained without necessary pre-deposit of tax, he had invoked the writ jurisdiction of this Court by instituting a writ proceeding registered as Civil Rule No. 5360 of 1979.
(2.) ON the basis of the orders passed by this Court directing the petitioner to deposit 50 per cent of the tax assessed along with interest, the appeals were entertained by the learned appellate authority and disposed of by judgment dated December 23, 1989 allowing the appeals in question and determining the tax liability of the petitioner as nil. On the basis of the said order of the appellate authority, fresh assessment orders (seven in number) were passed by the assessing authority on February 4, 1992 determining the tax liability of the petitioner as nil. The petitioner, thereafter, prayed for refund of the amount of tax and interest deposited by him pursuant to the orders of this Court in C.R. No. 5360 of 1979. While the said application for refund was pending, the respondent No. 4, i.e., the Commissioner of Taxes, Government of Assam, issued a notice dated February 25, 1994 under the provisions of section 36(1) of the Assam General Sales Tax Act, 1993 seeking to revise the appellate order dated December 23, 1989 passed by the Assistant Commissioner of Taxes (Appeals) on the ground that the said order was erroneous and prejudicial to the interest of revenue. The legality of the aforesaid notice dated February 25, 1994 is the subject-matter of challenge in the present proceeding.
(3.) IN the present case an affidavit has been filed by the Joint Commissioner of Taxes, Government of Assam. A perusal of the aforesaid affidavit, particularly, the averments contained in paragraphs 7 and 11 goes to show that the learned Commissioner appears to have issued the impugned notice on the ground that the order dated December 23, 1989 passed by the Assistant Commissioner of Taxes (Appeals), Jorhat, was in his view not a correct order for which reason the said authority has construed the same to be erroneous. Nothing has been disclosed in the affidavit filed as to what jurisdictional error has crept into the said order dated December 23, 1989 so as to make the same amenable to correction in exercise of suo motu powers under section 36(1). No records to the above effect has also been placed before the Court. The satisfaction that the order sought to be revised is erroneous and prejudicial to the interest of the revenue has to be reached by the Commissioner and not by this Court. In the absence of any such satisfaction, on the ratio of the law laid down by this Court in the case of Shri Rajendra Singh v. Superintendent of Taxes [1990] 79 STC 10; (1990) 1 GLR 449, the conclusion that is inescapable is that the necessary conditions precedent to the exercise of power under section 36(1) of the Act are absent in the present case.