Gujarat High Court
M. Ravji vs State Of Gujarat on 24 July, 1991
JUDGMENT A.P. Ravani, J.
1. The dealer, a dissolved partnership firm, requested the Tribunal to make reference to this Court. The questions referred to are reproduced hereinafter. The relevant assessment period is as follows :
1. April 1, 1956 to March 31, 1957.
2. April 1, 1957 to October 23, 1957.
3. October 24, 1957 to November 11, 1958.
4. November 12, 1958 to February 22, 1959.
The dealer was a registered partnership firm and was carrying on business of reselling oil. It was registered under the appropriate provisions of the Bombay Sales Tax Act, 1953. The firm was dissolved on February 22, 1959. Before it was dissolved, a search was made on the business premises of the firm and its books of accounts and other material were seized. For the aforesaid period, assessment was made by the Sales Tax Officer. He passed four different orders and directed the assessee to pay Rs. 1,24,686.18 over and above the amount of Rs. 4,00,697.57 paid by it along with the returns. The aforesaid orders were passed by the Sales Tax Officer on May 18, 1957. Against the aforesaid assessment orders, the dealer filed four different appeals before the Assistant Commissioner of Sales Tax. It was contended in the appeals that in view of the decision of the Supreme Court in the case of State of Punjab v. Jullundur Vegetables Syndicate reported in [1966] 17 STC 326, a dissolved firm cannot be assessed. The Assistant Commissioner of Sales Tax followed the aforesaid decision and by his order dated November 29, 1967, set aside the order of assessment passed by the Sales Tax Officer.
2. Thereafter things remained quiet up to March 20, 1976, on which date the Deputy Commissioner of Sales Tax issued a notice to the dealer stating that the matters were being taken up in suo motu revisions. It appears that this action was taken on account of the decision of the Supreme Court in the case of the Murarilal Mahabir Prasad v. B. R. Vad reported in [1976] 37 STC 77. In that decision, the Supreme Court held that under the Bombay Sales Tax Act, 1953, a dissolved firm could be assessed or reassessed in respect of its turnover up to the date of its dissolution. In view of this decision, the aforesaid notice was issued.
3. In response to the notice, the dealer appeared before the Deputy Commissioner of Sales Tax and raised several contentions on facts as well as on law points. The Deputy Commissioner, however, negatived all the contentions raised by the dealer and held as per his order dated November 27, 1980, that the order passed by the Assistant Commissioner of Sales Tax is not in accordance with law, and the matters were remanded to the Assistant Commissioner of Sales Tax for deciding the same on merits. It may be noted that the Assistant Commissioner of Sales Tax has disposed of the appeals only on the ground that the dissolved firm could not be assessed. He had not passed order on merits.
4. Against the order passed by the Deputy Commissioner of Sales Tax, the dealer preferred four different revision applications before the Tribunal. It was, inter alia, contended before the Tribunal that the exercise of revisional power under section 31 of the Bombay Sales Tax Act, 1953, was after a lapse of considerable time and after such an inordinate delay, if the powers are exercised, the same cannot be said to be reasonable exercise of power. Therefore, the order passed by the Deputy Commissioner of Sales Tax should be set aside. The Tribunal rejected all the contentions raised by the dealer by its judgment and order dated November 12, 1982. The dealer, thereafter, applied for making reference of certain questions to this Court.
The Tribunal drew up the statements of the case and referred the following questions to this Court for its opinion. Our answer to the questions are indicated in the column opposite to each question.
Questions Answers
1. Whether, on the facts and in the In negative, in favour
circumstances of the case, the Tribunal of the assessee and
is right in holding that the exercise of against the Revenue.
powers under section 31 of the Bombay Sales
Tax Act, 1953, as per orders passed on
November 27, 1980 by which appeal orders
dated November 29, 1967 are set aside is
legal and valid ?
2. Whether, on the facts and in the In affirmative, in
circumstances of the case, the Tribunal favour of the Revenue
is right in holding that exercise of suo and against the
motu revision power by the Deputy assessee.
Commissioner does not entrench upon the
power of rectification of the Assistant
Commissioner of Sales Tax under the Bombay
Sales Tax Act, 1953 ?
3. Whether, on the facts and in the In negative, in favour
circumstances of the case, the Tribunal of the assessee and
is right in holding that the requirement against the Revenue.
of the exercise of the power of suo motu
revision within a reasonable time as laid
down by the Supreme Court in the case of
State of Gujarat v. Patel Raghav Natha AIR
1969 SC 1297 would not be applicable to
the provisions of the Bombay Sales Tax Act,
1953 ?
4. Whether, on the facts and in the In negative, in favour
circumstances of the case, the Tribunal of the assessee and
was right in holding that the power of against the Revenue.
suo motu revision cannot be said to be
unreasonably exercised in the case of the
applicant ?
5. Whether, on the facts and in the In view of the answer
circumstances of the case, the suo motu to questions Nos. 1
revision orders passed without making all and 4 this question
the ex-partners of the dissolved firm does not survive.
parties to the proceedings of Hence not answered.
revision, are legal and valid ?
5. As indicated hereinabove, the assessment period covered by the orders passed by the Sales Tax Officer which culminated into revision by the Deputy Commissioner of Sales Tax, is of the years 1956 to 1959. To be precise the period starts from April 1, 1956 to February 22, 1959. This period is divided into four different periods. It is an admitted position that the firm was dissolved on February 22, 1959. On May 18, 1957 the Sales Tax Officer passed assessment orders on the basis of the record produced and which was seized by the officers of the Sales Tax Department on December 19, 1958. Following the decision of the Supreme Court in the case of State of Punjab v. Jullundur Vegetables Syndicate reported in [1966] 17 STC 326, the Assistant Commissioner of Sales Tax allowed the appeals solely on the ground that a dissolved firm could not be assessed. Thereafter, the Supreme Court rendered its decision in the case of Murarilal Mahabir Prasad v. B. R. Vad reported in [1976] 37 STC 77 sometime in September, 1975. However, the decision appears to have been reported in January or February 1976. It also appears that the department came to know about the view taken by the Supreme Court that having regard to the scheme of the Bombay Sales Tax Act, 1953 and Bombay Sales Tax Act, 1959, a dissolved firm can be assessed or reassessed to tax in respect of its pre-dissolution turnover. In the case of Murarilal Mahabir Prasad [1976] 37 STC 77 the Supreme Court also considered its earlier decision in the case of Jullundur Vegetables Syndicate [1966] 17 STC 326 and explained and distinguished the same. In view of this judgment of the Supreme Court, the Deputy Commissioner of Sales Tax issued notice on March 20, 1976 and sought to exercise his suo motu power and take all the four matters in revision. Thus after a period of eight years and four months the suo motu revision power was exercised by the Deputy Commissioner of Sales Tax.
6. The controversy before the Tribunal was as to whether the Tribunal should have followed the decision of the Supreme Court in the case of Swastik Oil Mills Ltd. v. H. B. Munshi, Deputy Commissioner of Sales Tax reported in [1968] 21 STC 383 or the decision of the Supreme Court in the case of State of Gujarat v. Patel Raghav Natha reported in AIR 1969 SC 1297. It was contended before the Tribunal as well as before this Court that in the case of Swastik Oil Mills [1968] 21 STC 383, the Supreme Court has in terms held that no period of limitation can be read into the statute as regards the suo motu exercise of revisional powers because the statute has not provided any such limitation. While in the case of Patel Raghav Natha AIR 1969 SC 1297 the Supreme Court has in terms held that the revisional powers must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and nature of the order which is being revised. It is true that the Supreme Court has made these observations while considering the provisions of section 211 of the Bombay Land Revenue Code. But it should not be forgotten that in section 211 of the Bombay Land Revenue Code, no period of limitation has been prescribed. The Supreme Court was aware of this fact. As a matter of fact, this fact has been noted by the Supreme Court. Even so, the Supreme Court observed to the following effect :
".... it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised."
The applicability of the aforesaid principle laid down by the Supreme Court cannot be restricted to the cases falling under the provisions of section 211 of the Bombay Land Revenue Code. If there is similar provision in any other statute and the question of exercise of revisional power arises, then the principle laid down by the Supreme Court in the case of Patel Raghav Natha AIR 1969 SC 1297 would be applicable. It has got to be recognised that under article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts in the country. It is not open to the lower court to bye-pass the judgments of the superior forum and that too of the Supreme Court by saying that the law declared by the Supreme Court pertains to some other statute. Such a distinction is without any meaning whatsoever. In our opinion, it was not open to the Tribunal to say that the decision of the Supreme Court in the case of Patel Raghav Natha AIR 1969 SC 1297 was not relevant simply because it was not under the Sales Tax Act.
7. Therefore, the question arises as to what is the effect of the decision of the Supreme Court in the case of Swastik Oil Mills [1968] 21 STC 383. In that case the dealer was assessed to sales tax on its turnover for the periods from April 1, 1948 to March 31, 1950 and from April 1, 1950 to March 31, 1951. The assessment was made on the basis of the returns submitted by it. In the returns submitted by the assessee, it claimed exemption from tax in respect of the turnover representing the despatches or transfers of goods from its head office, Bombay to various depots or branches in other States. It had also claimed exemption in respect of sales which were alleged to have taken place in the course of inter-State trade after January 26, 1950. The Sales Tax Officer rejected both the aforesaid claims. The assessee preferred appeal before the Assistant Commissioner of Sales Tax who partly accepted the aforesaid claims as per his order dated October 29, 1956. As a consequence of the order passed by the appellate authority, the tax liability of the assessee-company was reduced. Hence direction was given that the amount of tax paid be refunded to it. The assessee filed revision in respect of the claim which was rejected by the appellate authority. During the pendency of the revision application on January 7, 1963, a notice was issued by the Deputy Commissioner of Sales Tax, Bombay, in exercise of his power under section 32 of Bombay Sales Tax Act, 1953. By this notice, the company was intimated that the Deputy Commissioner of Sales Tax proposed to suo motu revise the orders passed by the Assistant Commissioner of Sales Tax in appeal. It was proposed that the deduction in respect of the entire goods despatched to branches in other States outside Maharashtra was not proper inasmuch as certain provisions of the Act were overlooked by the Assistant Commissioner of Sales Tax. On receipt of this notice, the company had preferred writ petition in the High Court of Bombay challenging the legality and validity of the notice on various grounds including the ground regarding limitation. The Bombay High Court rejected the petition. The matter was carried before the Supreme Court. Before the Supreme Court one of the contentions raised was that it should be held that the proceedings sought to be initiated were barred by time because the limitation of reasonable time within which the revisional powers are to be exercised must be implied in the statute itself. The Supreme Court refused to read such limitation and observed as follows :
".... when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this Court in K. M. Cheria Abdulla & Co.'s case [1965] 16 STC 875. These limitations are that the revising authority should not trench upon the powers which are expressly reserved by the Acts or by the Rules to other authorities and should not ignore the limitations inherent in the exercise of those powers."
From the aforesaid observations made by the Supreme Court, it is clear that there are two limitations or constraints on the exercise of revisional powers. They are as follows :
(i) The revisional authority should not exercise the powers which are reserved by the Act or by the Rules to any other authority, that is to say, the revisional authority should not encroach upon the powers of any other authority.
(ii) That the revisional authority should not ignore the limitations inherent in the exercise of power.
In the case of Swastik Oil Mills [1968] 21 STC 383, in the context of the facts of the case, the Supreme Court held that when the Deputy Commissioner of Sales Tax sought to exercise his revisional powers under section 31-A of the Act, he was not transgressing any of the limits indicated by the Supreme Court in the case of the State of Kerala v. K. M. Cheria Abdulla & Co. reported in [1965] 16 STC 875.
8. The decision of Swastik Oil Mills case [1968] 21 STC 383 was rendered by the Supreme Court on November 29, 1967. Thereafter in the year 1969, the Supreme Court decided the case of Patel Raghav Natha AIR 1969 SC 1297. By necessary implication, the Supreme Court has explained the inherent limitations on the exercise of powers by revisional authority. When the Supreme Court held that it was plain that the powers (revisional power under section 211 of the Bombay Land Revenue Code) must be exercised within reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which was being revised, it was reiterating the well-settled principle of law that every statutory power must be exercised reasonably. The duty to act judicially would necessitate the compliance with the rules of natural justice. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. This is so stated by the Supreme Court in the case of A. K. Kraipak v. Union of India reported in AIR 1970 SC 150. It is also a settled principle of law entrenched in our jurisprudence that a power conferred upon any statutory authority should be exercised genuinely. Genuine exercise of powers takes within its sweep the concept of reasonableness.
9. While considering the reasonableness or otherwise of the exercise of power, time element enters into it. If the time gap is such that the exercise of power can be said to be unreasonable and therefore not genuine, then the element of time becomes relevant. In this context reference may be made to a decision of the Supreme Court in the case of Mansaram v. S. P. Pathak reported in AIR 1983 SC 1239. In that case a tenant was sought to be evicted after a period of about 22 years on the alleged ground that his initial entry in the premises was unauthorised. The question arose in the context of the provisions of the C.P. and Berar Letting of Houses and Rent Control Order (1949) and the Supreme Court observed as follows :
"........ power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant."
Therefore the Supreme Court has referred to its earlier decision in the case of Patel Raghav Natha AIR 1969 SC 1297 and has indicated that this is too well-established to need buttressing by a precedent.
10. In view of the aforesaid settled legal position, what is stated by the Supreme Court in the case of Patel Raghav Natha AIR 1969 SC 1297 can be summarised as follows :
(i) All the statutory authorities are required to exercise powers reasonably.
(ii) Reasonable exercise of powers pre-supposes that the authority on which the power is conferred shall act in just, fair and reasonable manner and not arbitrarily, the principles of natural justice come into play.
(iii) Powers conferred on any statutory authority can be exercised genuinely and for the purpose for which it is conferred. To determine as to whether the power conferred and exercised is genuine or not, one has to take into consideration the time element. If the power is exercised after inordinate delay, in a given case it may be said that it is not genuine exercise of power. This would depend upon facts and circumstances of each case.
(iv) While deciding as to whether it is genuine exercise of power or not, the facts of the case and the nature of the order sought to be revised are required to be taken into consideration.
(v) In substance, length of the reasonable time is to be determined by taking into consideration the facts of the case and the nature of the order sought to be revised.
11. Applying the aforesaid principles to the facts of the case, one has to keep in mind the scheme of the Act and the purpose for which the powers are conferred upon the authority. After examining the scheme of the Act and after noting the purpose for which the power is conferred, the question needs to be examined by keeping in mind the facts of each case and the nature of the order. Is the exercise of power is consonance with the object of the Act and does it serve the purpose for which the same is conferred ? In the instant case, the power of suo motu revision is conferred to see that tax imposed is properly collected and wherever there is concealment and tax is escaped, the same is disclosed and brought within the taxation net. After examining this question, one has to consider the nature of the order under revision and consequences of the order, that may be passed in revision. Are the consequences such which are normally contemplated by the working of the Act ? Are the consequences such that there is likelihood of conflict of interest between a private individual and the interest of the society ? These are some of the considerations which should be taken into consideration while determining the nature of the order and while examining the facts of each case. In short all the relevant aspects of the facts of the case and that of the order under revision should be taken into consideration. Therefore one may say that length of time would depend upon the facts of each case.
12. It may be noted that in taxing statutes each year is a separate entity. Ordinarily the assessment is to be made by the taxing officers in relation to each accounting year. Businessmen as well as the Revenue do not consider that the respective rights and obligations of the parties remain open for an indefinite time. This is the reason why in almost all taw laws detailed provisions for assessment is made and assessment is ordinarily for each separate year. It is common knowledge that very often at the end of financial year the rates of tax also may change. The trading community and the people engaged in the world of commerce and trade manage and arrange their affairs by taking into consideration the provisions of tax laws prevailing at the time. They also arrange their affairs by taking recourse to and by understanding the orders that may be passed in each assessment year by the appropriate officers. Having regard to the normal course of business and the conduct of the administration, it should ordinarily be held that once assessment is over in respect of a particular year, the same would not be reopened except as provided under the Act.
13. The Act provides for the reopening of assessment in certain cases only. There is no provision for reopening of the assessment on the ground of mistake of law common to both. It may be that mistake of law may be a ground of suo motu revision. But then the same should be subject to the inherent limitation for the purpose for which the power is conferred. The power is conferred for the purpose of collecting revenue and to see that there is no concealment and evasion of tax and the dealer has not escaped the assessment. In short it is conferred with a view to prevent evasion of tax and also to see that unlawful orders are corrected by the revisional authority. But this could be done within reasonable time only. The time element enters into consideration from the aspect of reasonableness. No power can be exercised in an unreasonable manner. Hence the importance of time factor. Therefore, ordinarily, in tax laws when the assessment is over and the parties have arranged and adjusted their affairs in accordance with the orders passed by the appropriate authority, the parties should be free to proceed further pursuant to the orders so passed. If any action is permitted to be taken under the Act, the same can be taken in accordance with law. Where no time-limit for such action is provided, the question of reasonable time comes into play without which the exercise of power may be exposed to arbitrariness.
14. If one examines the scheme of the Act even if there is concealment and the dealer has escaped the assessment, such cases should be taken into consideration by the appropriate tax authorities tax authorities within a period of eight years from the year in question. Applying this yardstick in this case, the period can be stretched maximum up to the year 1975. However, one may take the starting point from November 29, 1967, the date of the order passed by the Assistant Commissioner of Sales Tax. Even so, the period of limitation of eight years would expire sometime in November, 1975. It may be noted that this could be done in case where there is concealment and thereby the payment of tax is evaded.
15. In the instant case, there is no such question. Everyone believed the position of law as declared by the Supreme Court in the case of Jullundur Vegetables Syndicate [1966] 17 STC 326 to be the correct law. Thereafter the Supreme Court in the case of Murarilal Mahabir Prasad [1976] 37 STC 77 explained its earlier decision and indicated the correct position of law as far as the Bombay Sales Tax Act, 1953 and Bombay Sales Tax Act, 1959, are concerned. On this ground it cannot be said that the assessment which have become final before about eight years be reopened. At this stage the nature of the order under revision and the consequences of the order become relevant. The order under revision is final. The appellate authority had finally decided the cases. Ordinarily after this order one would believe that his liability under the sales tax law is finally decided unless the matter is carried further within prescribed time-limit.
16. Reopening of the case after eight years would create immense hardship to the parties. In case of a dissolved firm, one would not know where the partner would be. Different partners might have started their separate business. Some of them might have migrated to other town or country. Some of them might have died. Many situations can be visualised. On the other hand is such a situation is permitted on the part of the assessee and if the assessee could invoke the powers of High Courts or any other appropriate authority and seek reopening of the assessment on the ground of mistake of law after such an inordinate delay, there would be heavy loss as far as the public revenue is concerned. Budgets would be upset. Estimates of revenue income made will be of no use. Estimates of expenditure also would become useless. All the estimates of income and expenditure will have to be made provisional and subject to decision of final court. This would make the working of the Government and other instrumentalities of State impossible. Again this may have chain reactions. On account of reopening of the cases other private disputes also may arise. This may lead to multiplicity of litigation and in one's own lifetime no one would be certain about anything.
17. Therefore, ordinarily in cases of tax laws where assessment unit is one year and it is separate and distinct, ordinarily parties would arrange their business and other affairs as per the orders in assessment proceedings. Therefore unless fraud or collusion is shown, the cases should not be permitted to be reopened because the consequences would be to upset everything already settled. This is subject to the rider that a dealer or any one who has taken the advantage of his own wrong, cannot be permitted to retain the grains of ill-gotten fruits reaped by him. In cases where there may be fraud or a systematic well planned design to defraud the Revenue and thereby the society at large is made to suffer the loss, the power may be exercised even after a period of two, three or four years or even after more years because in such cases the consequences would be to disgorge the ill-gotten fruits reaped by a person who has committed fraud upon the society. This is the reason why in the case of the Patel Raghav Natha AIR 1969 SC 1297 the Supreme Court has said that the reasonableness of the length of time would depend upon the facts of the case and the nature of the order sought to be revised. In the instant case, having regard to the overall facts and circumstances of the case and the nature of the consequences which are likely to follow, we are of the opinion that it was not reasonable on the part of the Deputy Commissioner to invoke the powers under section 31 of the Bombay Sales Tax Act, 1953.
18. The learned counsel for the Revenue has drawn our attention to a decision of single Judge Bench of this Court rendered in the case of Minish v. State of Gujarat reported in (1985) 26 GLR 202. Relying on this decision it was submitted that this Court should hold that constraint as regards time should not be read at all while considering the exercise of power by revisional authority under section 31 of the Bombay Sales Tax Act. It is difficult to agree with this proposition. Even in the case of Minish (1985) 26 GLR 202 all that the court has done is to apply the principles laid down by the Supreme Court in the case of Patel Raghav Natha AIR 1969 SC 1297 and in the case of Swastik Oil Mills [1968] 21 STC 383. After examining the scheme of the Urban Land (Ceiling and Regulation) Act, 1976, the court has, inter alia, observed that in exercise of power under section 34 of the Urban Land (Ceiling and Regulation) Act the Government seeks to fulfil its obligation towards society. The State or the Government is not an interested party to take excess land from the individual. The interest of the Government is to see that the objects of the Act, namely, prevention of concentration of urban land in few hands and prevention of speculation and profiteering in the land be achieved so that the land is equitably distributed to all. The Government cannot be absolved from its obligation towards society because some officers of the Government are negligent and/or indolent and do not take action in time. In view of this position, the court further observed that the principles underlying the provisions of section 10 of the Limitation Act also may be invoked. Section 10 of the Limitation Act grants a total exemption from the bar of limitation in regard to the suits mentioned therein. The reason behind the section is that an express trust ought not to suffer by the misfeasance or non-feasance of the trustees. On the same reasoning it was observed that on account of the negligence or complacent behaviour of a Government Officer, the society should not be made to suffer. The land which otherwise would have vested in the Government as per the provisions of the Urban Land (Ceiling and Regulation) Act should not be allowed to be used by an individual on account of technical plea of limitation. Thus it would be clear that in the facts of the case, and having regard to the nature of the order to be revised, the court held that the exercise of revisional power under section 34 of the Act after a period of about two years would not be said to be unreasonable. We are in perfect agreement with the principles laid down and with what is stated in the case of Minish (1985) 26 GLR 202. But as far as the facts of the case and the nature of the order sought to be revised in the instant case is concerned, the period of little over eight years cannot be said to be reasonable for the reasons indicated hereinabove. In view of this position, the decision rendered by one of us (A. P. Ravani, J.) in the case of Minish (1985) 26 GLR 202 is of no help to the Revenue.
19. The learned counsel for the Revenue submitted that in the Bombay Sales Tax Act, 1953, the Revenue had no right to file appeal or revision against the appellate order of the Assistant Commissioner of Sales Tax and therefore the revisional power should be permitted to be exercised without placing any limitation as regards time. The contention cannot be accepted for the simple reason that in such a situation one has to ask a question - "Had the Legislature intended to confer such right of appeal or revision on the Revenue, how much time would have been prescribed for filing appeal or revision ?" It would not be more than sixty days or ninety days or at the most six months. But in any case, it would not be little over eight years. Even so, as indicated hereinabove, the length of reasonable time would depend upon the facts and circumstances of each case. We have indicated certain facts which should be taken into consideration while determining the length of time. We have also indicated other relevant factors. Therefore simply because the Revenue had no right to file appeal or revision against the order of the Assistant Commissioner of Sales Tax, the Revenue does not get an unlimited power to invoke the revisional jurisdiction after an inordinate delay.
20. It was contended that the revisional authority while exercising suo motu powers trenches upon the powers conferred on other officers/authorities exercising power under the Act and the Rules. It is pointed out that exercise of such revisional power would amount to rectification or reassessment. The powers of rectification and reassessment cannot be exercised by the revisional authority. Therefore it is submitted that this is nothing but trenching upon the powers of an officer/authority who could exercise the power of rectification and reassessment. The argument takes within its sweep an assumption that at the time when the revisional powers are invoked the proceedings of rectification and/or reassessment are pending. Unless it is shown that the proceedings of rectification and/or reassessment are pending, it cannot be said that the revisional authority is trenching upon powers which are conferred upon other authority/officer. The power of rectification stands on different footing. While making rectification it may be that the Assistant Commissioner may also pass same or similar type of order. But when the revisional authority exercise its power, it does not exercise the powers of the Assistant Commissioner. While describing the limitation on the powers of the revisional authority what the Supreme Court said in the case of Swastik Oil Mills [1968] 21 STC 383 is required to be understood in proper context. The Supreme Court has not said that the revisional authority shall not exercise the powers conferred upon the appellate authority or the power of rectification. What is meant by this limitation is that at that particular stage appeal or rectification proceedings should not be pending. If at the stage of invoking the revisional powers in the same proceedings appeal is pending, and the revisional authority seeks to exercise its suo motu power, it may amount to trenching upon the powers of appellate authority. Similarly in a case where rectification proceedings are pending in the same proceedings the revisional authority may not be free to exercise its revisional powers conferred upon it. Only in such a situation the exercise of revisional power amount to trenching upon the powers of appellate authority and/or the authority exercising the powers of rectification. Where no such proceedings are pending before the appellate authority or before the authority exercising powers of rectification, the exercise of powers by the revisional authority would not amount to trenching upon the powers of appellate authority or that of rectification authority. If such limitation-constraints are to be read on the powers of the revisional authority as contended by the learned counsel for the assessee then the power of the revisional authority would be illusory. No such limitation as is sought to be canvassed by the learned counsel for the assessee can be read on this power.
21. For the reasons stated hereinabove, the reference is answered as indicated in para 4 of the judgment. Reference stands disposed of accordingly with no order as to costs.
22. Reference answered accordingly.