Patna High Court
Commissioner Of Commercial Taxes vs Guru Charan Sao And Anr. on 10 May, 1974
Equivalent citations: [1974]34STC378(PAT)
JUDGMENT S.N.P. Singh, Ag. C.J. 1. These two tax cases have been heard together and they are being disposed of by this common judgment. 2. At the instance of the Commissioner of Commercial Taxes, Bihar, this court directed the Commercial Taxes Tribunal, Bihar, to state the cases and to refer them to the High Court under Section 33(3) of the Bihar Sales Tax Act, 1959 (hereinafter to be called the "Act") for decision of the following common question: When the Commissioner of Commercial Taxes had rejected an application filed before him under Section 31(5) of the Bihar Sales Tax Act, 1959, by the assessee, in limine, did the Commercial Taxes Tribunal, Bihar, Patna, have jurisdiction to entertain a revision on behalf of the assessee from that order, under Section 31(2) and set aside the order of the Commissioner of Commercial Taxes and remand the case to him for re-examining the points which had been raised by the assessee in the application under Section 31(5)? 3. The facts of Tax Case No. 62 of 1970 are these: Guru Charan Sao, who is a grocery dealer at Bakhtiarpur, was assessed under Section 16(5) of the Act as an unregistered dealer on a gross turnover of Rs. 2,40,000 for the period 1st February, 1961, to 30th September, 1967, and a tax of Rs. 12,300 and penalty of Rs. 500 were imposed on him by an order of assessment dated 5th October, 1967. After a lapse of nearly seven months the demand notice was issued on 23rd May, 1968, and served on him the next day. The assessee did not file an appeal under Section 30 of the Act before the prescribed appellate authority against the order of assessment. On 26th June, 1968, he filed an application before the Commissioner invoking his jurisdiction under Section 31(5) of the Act to set aside the order of assessment. The Commissioner by his order dated 26th November, 1968, dismissed that application. The dealer thereupon filed an application under Section 31(2) of the Act before the Tribunal for revising the order of the Commissioner. The Tribunal by its order dated 1st November, 1969, allowed the application, set aside the order of the Commissioner and remanded the case to the Commissioner for re-examination in accordance with law and the directions given by it. The Tribunal made an observation to the effect that there was a need for the Commissioner of Commercial Taxes to make further enquiries about the financial condition of the dealer and exercise his discretionary power of revision under Section 31(5) of the Act if justified by the circumstances of the case. The Commissioner of Commercial Taxes thereupon filed an application before the Tribunal for reference under Section 33(1) of the Act. The Tribunal by its order dated 28th September, 1970, rejected the application for reference. The Commissioner thereupon filed an application in this court under Section 33(3) of the Act and the Bench of this Court by the order dated 20th July, 1971, directed the Tribunal to state a case on the question of law, referred to above, and to refer it to this court. 4. The facts of Tax Case No. 63 of 1970 are as follows: M/s. Sita Bhandar, a dealer in foodgrains, onions and potatoes, was assessed for sales tax for the year 1965-66 by an order of assessment dated 31st August, 1968. The dealer had made a claim for a deduction of Rs. 5,76,686.07, being the value of consignments of onions and potatoes to dealers outside the State for sales in their arhats. That claim was disallowed by the assessing officer and he held that, all those sales were actually in Bihar though they were shown as sales in the arhats in Calcutta to avoid taxation and, accordingly, levied tax at the rate of 5 per cent on the entire amount. No appeal was filed by the dealer before the prescribed appellate authority under Section 30 of the Act. An application under Section 31(5) of the Act was, however, filed by the dealer before the Commissioner of Commercial Taxes on 3rd January, 1969. That application was dismissed by the Commissioner on 17th March, 1869. The dealer thereupon filed an application in revision before the Commercial Taxes Tribunal. That application was disposed of by the Tribunal by its order dated 18th September, 1969. Though the Tribunal held that the Commissioner was justified in refusing to interfere in the case, it allowed the application and passed the following order: However, considering the fact that the applicant, who is made liable for a substantial additional tax liability of about Rs. 29,000 is now left without any remedy, no doubt due to Ms own laches, and in view of the specific allegation by him that certain sales have been assessed to tax illegally, the learned Commissioner may, in the interests of justice, call for the records and examine in particular the legality of the order of assessment. We accordingly remand the case to the Commissioner for a consideration of the application dated 3rd January, 1969, of the assessee and for passing such orders as he may deem fit. The Commissioner of Commercial Taxes thereupon filed an application under Section 33(1) of the Act before the Tribunal for referring certain questions to this court. The Tribunal, however, declined to make a reference and rejected the application by its order dated 28th September, 1970. The Commissioner then filed an application in this court under Section 33(3) of the Act and a Bench of this Court by the order dated 20th July, 1971, called upon the Tribunal to state a case on the question of law mentioned above and to refer it to this court. 5. In order to decide the question of law which has been referred for decision, it would be necessary to refer to Section 31 of the Act in expense. Section 31 reads thus: (1) Subject to such rules as may be made by the State Government under this Act, an order passed on an appeal under Sub-section (1) or (2) of Section 30 may, on application, be revised -- (a) by the Deputy Commissioner, if the said order has been passed by the Appellate Assistant Commissioner, and (b) by the Board, if the said order has been passed by the Deputy Commissioner or the Commissioner. (2) Subject as aforesaid, any order passed by the Deputy Commissioner under Sub-section (1) or by the Commissioner under Sub-section (5) may on application, be revised by the Board. (3) Subject as aforesaid any order passed under this Act or the Rules made thereunder, other than an order passed by the Commissioner under Sub-section (5) of Section 8, or an order under Sub-section (1) or (2) or an order against which an appeal has been provided in Section 30, may, on application, be revised-- (a) by the Appellate Assistant Commissioner, if the said order has been passed by a Superintendent or Assistant Superintendent, (b) by the Deputy Commissioner, if the said order has been passed by the Appellate Assistant Commissioner or Assistant Commissioner, and (c) by the Commissioner, if the said order has been passed by the Deputy Commissioner. (4) Every application for revision under this section shall be filed within sixty days of the passing of the order which is sought to be revised, but the authority to whom the application lies may admit it after the expiry of the said period of sixty days if it is satisfied that the applicant had sufficient cause for not filing the application within the said period. (5) The Commissioner may call for and examine the record of any proceeding under this Act in which any order has been passed by any other authority appointed under Section 8, for the purpose of satisfying himself as to the legality or propriety of such order and may, after examining the record and making or causing to be made such enquiry as he may deem to be necessary, pass any order which he thinks proper: Provided that no action under this section shall be initiated except before the expiry of four years from the date of the order which is the subject of scrutiny by Commissioner under this sub-section. (6) No order under this section shall be passed without giving the dealer as also the authority whose order is sought to be revised or their representatives, a reasonable opportunity of being heard. 6. By a notification dated 26th November, 1964, the Commercial Taxes Tribunal has been constituted under Section 34A of the Act and it exercises all the powers and performs all the functions of the Board of Revenue. Hence, the power of revision under Section 31(l)(b) and Section 31(2) of the Act are now being exercised by the Commercial Taxes Tribunal. 7. On a plain reading of Section 31, it will appear that no restriction has been put on the power of the revisional authority under Sub-section (1), Sub-section (2) or Sub-section (3) of Section 31. Under Sub-section (5) the Commissioner has been vested with the power of calling for and examining the record of any proceeding under the Act for the purpose of satisfying himself as to the legality or propriety of an order passed by an inferior authority appointed under Section 8 of the Act. The only limitation which is put upon the power of the Commissioner under the proviso to Sub-section (5) is that he cannot initiate an action after the expiry of four years from the date of the order which is the subject of scrutiny. The jurisdiction of the Commissioner under Sub-section (5) of Section 31 is one of superintendence and correction in appropriate cases and it is not circumscribed by any condition or qualification. This power has been given to the Commissioner so that he may see that no order of a subordinate officer causes undue hardship to the dealer or jeopardises the financial interests of the State. The order of the Commissioner passed under Sub-section (5) is, however, not final inasmuch as it is subject to the revision by the Tribunal. It is significant to note that the revisional power which had been conferred upon the Board of Revenue under Sub-section (2) of Section 31 is identical both in respect of an order passed by the Deputy Commissioner under Sub-section (1) and in respect of an order passed by the Commissioner under Sub-section (5). 8. Mr. Shreenath Singh, learned standing counsel No. 1, appearing for the revenue, did not and indeed he could not challenge the jurisdiction of the Tribunal to revise an order passed by the Commissioner under Sub-section (5) of Section 31 of the Act. The learned standing counsel, however, vehemently urged that the orders of the Commissioner passed in the two cases were not orders under Sub-section (5) of Section 31 and as such they were not revisable by the Tribunal. 9. In Tax Case No. 62 of 1970 the Commissioner passed the following order: Heard petitioner's lawyer Shri J.N. Sahay. When the avenue of appeal is available to the petitioner, I find no reason to take suo motu action. Petition rejected. In Tax Case No. 63 of 1970 the order which was passed by the Commissioner reads as follows: This is a petition by M/s. Sita Bhandar, Dinapore Cantonment, District Patna, for suo motu revision under Section 31(5) of the Bihar Sales Tax Act, 1959, against the assessment order dated 31st August, 1968, made by the Superintendent of Commercial Taxes, Patna Circle, for the period 1965-66. As to why the petitioner did not avail of the normal channel of appeal, he has stated that he is unable to deposit the 20 per cent amount required for admission of an appeal because the additional tax imposed is very high. 2. The amount which the dealer had to deposit for preferring an appeal is a little less than Rs. 4000. The dealer returned a gross turnover exceeding Rs. 8 lacs of which about Rs. 5,77,000 was for sales on his account and the rest for sales as commission agent. This shows that the petitioner has a business of considerable size. In the circumstances, his plea that he is unable to deposit about Rs. 4,000 for availing of the normal channel of appeal is not acceptable. 3. Admission refused. 10. Mr. Shreenath Singh submitted that the orders passed by the Commissioner in the two cases were not revisable by the Tribunal because the orders amounted to refusal to exercise jurisdiction under Section 31(5) of the Act and they were not orders passed under Section 31(5). The learned standing counsel made a distinction between an order passed under Section 31(5) and "initiation of action" under Section 31(5) and submitted that the Commissioner has first to decide whether to initiate an action under Section 31(5) and then to pass an order as contemplated under Section 31(5). If he decides not to initiate an action under Section 31(5) the matter ends there and his decision is not subject to revision under Section 31(2). If, however, he decides to initiate an action and proceeds further to pass an order either in favour of the dealer or against him, the order is subject to revision under Section 31(2). In the main Section 31(5) the words "initiation of action" do not occur. In the proviso to Sub-section (5) of Section 31, however, the expression "no action tinder this section shall be initiated" has been used. The proviso to Sub-section (5) fixes the limitation of four years from the date of the order of the subordinate officer during which the Commissioner can exercise his power under Section 31(5). It may be stated here that there is defect in the drafting of the proviso because for the words "this sub-section" the words "this section" have been used. 11. On the contention of the learned standing counsel, the first question, therefore, which falls for determination is whether the two orders passed by the Commissioner are merely orders refusing to initiate action under Section 31(5) or they are orders passed under Section 31(5). In the case of Rajpur Farms Ltd. v. Commissioner of Commercial Taxes [1972] 29 S.T.C. 177, one of the points for consideration before the Full Bench of this Court was as to what is the true import of the expression "initiate" occurring in the proviso to Sub-section (6) of Section 13 of the Bihar Sales Tax Act, 1947. The proviso to Sub-section (6) of Section 13 of that Act read as follows: Provided that no proceeding for assessment of the tax due from a dealer in respect of any period shall be initiated later than four years from the expiry of such period or later than two years from the date of disposal of the appeal, revision, review or reference directing fresh assessment. It was held by the Full Bench that the proceeding for assessment under Section 13(5) of the Act is initiated either when a dealer files a return voluntarily or when a notice is issued to the dealer. Applying the same principle in the instant cases, an action under Sub-section (5) of Section 31 will be deemed to be initiated when the dealer files an application before the Commissioner or when a notice is issued by the Commissioner on his own motion to the dealer or the revenue for taking action under Section 31(5). In the instant cases, therefore, actions under Sub-section (5) of Section 31 were initiated when the dealers filed their applications before the Commissioner. Mr. Shreenath Singh, learned standing counsel No. 1 is, therefore, not correct in his submission that the orders of the Commissioner in the two cases tantamount to refusal to initiate action under Section 31(5) and not orders passed under Section 31(5) of the Act. 12. Mr. Shreenath Singh next raised the contention that the orders passed in the two cases were not revisable by the Tribunal at the instance of the dealers because those orders were not prejudicial to the dealers. The learned standing counsel in support of this contention mainly relied on certain observation made by the Judicial Committee in the case of Commissioner of Income-tax v. Tribune Trust, Lahore [1948] 16 I.T.R. 214 (P.C.). In that case one of the points which fell for consideration before the Judicial Committee was whether the assessees could be denied the relief claimed by them under Section 33 of the Income-tax Act, 1922, on any valid ground. Section 33 of that Act read as follows: (1) The Commissioner may of his own motion call for the record of any proceeding under this Act which has been taken by any authority subordinate to him or by himself when exercising the power of an Assistant Commissioner under Sub-section (4) of Section 5; (2) On receipt of the record the Commissioner may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard. The Judicial Committee made certain observation in the context of a question whether a reference would lie to the High Court against an order of the Commissioner. Mr. Shreenath Singh strongly relied upon the following observation made by the Judicial Committee: It appears to them that an order made by the Commissioner under Section 33 can only be said to be prejudicial to the assessee when he is, as a result of it, in a different and worse position than that in which he was placed by the order under review. If the assessee has a complaint against any assessment or order made by a subordinate officer, he has the appropriate and specific remedy which the Act provides. The Commissioner may act under Section 33, with or without the invitation of the assessee; if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right; the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Commissioner acts at the invitation of the assessee and again does nothing to worsen his position, there is no justification for giving him a new right of appeal. In my opinion, since the observation made by the Judicial Committee in that case was incidental and it was made in the context of a question whether a reference would lie to the High Court against an order of the Commissioner, the above observation cannot be taken in aid of the extreme contention advanced on behalf of the revenue that only when a dealer is put in a worse position than what he was before as a result of the order passed by the Commissioner he can file a revision before the Tribunal. 13. The learned counsel next referred to a Bench decision of this Court in the case of Bhagwan Das v. Province of Bihar A.I.R. 1851 Pat. 366. In that case one of the questions which had been referred to by the Board of Revenue under Section 21(3) of the Bihar Sales Tax Act, 1944, for decision of this court was "whether the Commissioner may legally dismiss an application for revision under Section 24(4) without giving the applicant a reasonable opportunity of being heard in support of his application". This court answered the question in the affirmative. While considering that question, Agarwala, C. J., observed that an order refusing to revise was not an order which could be said adversely to affect either party to the proceedings. In that case neither the revisional power of the Commissioner nor the scope of the revisional power of the Board of Revenue was under consideration. The decision in that case, therefore, does not support the view which has been canvassed by the learned standing counsel. 14. The learned standing counsel next relied on a Bench decision of the Andhra Pradesh High Court in the case of Kalluri Bheemalingam and Ors., In re [1967] 19 S.T.C. 116. In that case, the question for consideration was whether an appeal under Section 23 of the Andhra Pradesh General Sales Tax Act, 1957, would lie to the High Court against the orders passed by the Board of Revenue under Section 20(1) of the Act. Section 23(1) of the Andhra Pradesh Act read as follows: Any dealer objecting to an order relating to assessment passed by the Board of Revenue suo motu under Sub-section (1) of Section 20 may appeal to the High Court within sixty days from the date on which the order was communicated to him: Provided that the High Court may admit an appeal preferred after the period of sixty days aforesaid if it is satisfied that the dealer had sufficient cause for not preferring the appeal within that period. It was held by the Bench of the Andhra Pradesh High Court that, having regard to the specific language employed in Section 23, it was clear that an appeal lay to the High Court only in those cases where the matter had been taken up by the Board suo motu and that cases where the assessee had invoked the Board's revisional jurisdiction were not within the class of orders against which appeals lay under that section. That case, in my opinion, is clearly distinguishable inasmuch as the 'words "suo motu" were used both in Sections 20(1) and 23(1) of the Andhra Pradesh Act. Moreover, the view expressed by the Andhra Pradesh High Court does not appear to be correct in view of the decision of the Supreme Court in the case of Board of Revenue, Madras v. Raj Brothers Agencies A.I.R. 1973 S.C. 2307. In that case, the assessee being aggrieved by the order of assessment of sales tax went in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed his appeals. Thereafter he filed second appeals to the Sales Tax Appellate Tribunal, Madras. Those appeals were dismissed as having been time-barred. The assessee then moved the Board of Revenue under Section 34(1) of the Madras General Sales Tax Act to revise the assessment orders. The Board came to the conclusion that it had no jurisdiction to entertain those petitions. The High Court of Madras in the writ application filed by the assessee held that the Board had jurisdiction to entertain those appeals and, consequently, issued a writ of mandamus to the Board to entertain the revision petition and consider them on merits. Against that decision of the High Court the State of Tamil Nadu came up in appeals before the Supreme Court. The Supreme Court upheld the decision of the High Court. Section 34(2) of the Madras General Sales Tax Act, 1959, read as follows: The Board of Revenue shall not pass any order under Sub-section (1) if-- (a) the time for appeal against that order has not expired; or (b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order. The Supreme Court while considering the scope of Section 34(1) of the Madras Sales Tax Act made the following observation: The power is conferred on the Board to remedy any injustice. It is open to an assessee or the revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification, for exercising its jurisdiction under Section 31, then in the absence of any vitiating circumstance recognised by law, the High Court would not have interfered with the discretion of the Board. But. what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessee's appeal it was not competent to entertain the petition. 15. I may now refer to a decision of the Supreme Court in the case of Everest Apartments Co-operative Housing Society Ltd. v. State of Maharashtra A.I.R. 1966 S.C. 1449. In that case the Supreme Court had to consider the scope of Section 154 of the Maharashtra Co-operative Societies Act, 1960. Section 154 of the said Act read as follows: Power of State Government and Registrar to call for proceedings of subordinate officer and to pass orders thereon.--The State Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them, except those referred to in Sub-section (9) of Section 149 for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. If in any case, it appears to the State Government, or the Registrar, that any decision or order proceedings so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard pass such order thereon as to it or him may seem just. On the scope of Section 154, Hidayatullah, J., made the following observation: There is no doubt that Section 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under Section 149(9) of the Act. The exception was considered necessary because the legality or the propriety of an order having once been considered, it would be an act of supererogation to consider the matter twice. It follows, therefore, that Government can exercise its powers under Section 154 in all cases with one exception only and that the finality of the order under Section 23(3) does not restrict the exercise of the power. The word 'final' in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that it had no Jurisdiction in this case for it obviously had. In that case the Supreme Court also considered the question whether a party has a right to move Government and it was observed as follows: The Tribune Trust case [1948] 16 I.T.R. 214 (P.C.) is distinguishable and cannot help the submission that Government cannot be moved at all. The words of the two enactments are not materially equal. The Income-tax Act used the words suo motu which do not figure here. It is, of course, true that the words 'on an application of a party' which occur in Section 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the court. After this is done, it is for the court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case. As already stated, in Sub-section (5) of Section 31, the words "suo motu" do not occur. In that view of the matter, the Commissioner was quite competent to revise the orders under Section 31(5) on the applications filed by the dealers and, as such, the orders passed by the Commissioner were revisable by the Tribunal. 16. In the case of Mela Ram & Sons v. Commissioner of Income-tax, Punjab [1956] 29 I.T.R. 607 (S.C.), one of the questions for consideration before the Supreme Court was whether an order dismissing an appeal as barred by limitation was one passed in appeal and it fell within Section 31 of the Income-tax Act. Venkatarama Ayyar, J., upon a consideration of a number of decisions observed as follows: There is thus abundant authority for the position that Section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like. The decision in that case is a settler on the question that the order contemplated under Section 31(5) is not only an order passed on a consideration of the merits but will include the order which would dispose of the revision on preliminary issues and, as such, the order will be revisable under Section 31(2) of the Act by the Tribunal. 17. For the foregoing reasons, I am of the view that when the Commissioner of Commercial Taxes rejected the applications filed by the dealers before him under Section 31(5) of the Act in limine, the Commercial Taxes Tribunal, Bihar, Patna, had jurisdiction to entertain the revisions on behalf of the dealers from those orders under Section 31(2) of the Act. 18. Having answered the first part of the question, I now proceed to consider the second part, namely, whether the Tribunal could, while exercising power under Section 31(2) of the Act, set aside the order of the Commissioner of Commercial Taxes and remand the case to him for re-examining the point which had been raised by the assessees in the application under Section 31(5). It was submitted on behalf of the dealers that no illegality was committed by the Tribunal in remanding the two cases and in directing the Commissioner to dispose of the applications under Section 31 (5) in the light of the directions given by it. In support of this contention, the learned counsel appearing for the assessees referred to some decisions. In the case of Deputy Commissioner of Commercial Taxes, Madras Division v. C. M. Swamy & Co. [1954] 5 S.T.C. 163, the Appellate Tribunal pointed out that the Commercial Tax Officer had rightly rejected the appeal as filed beyond the period of limitation allowed by the law as it stood then but had added: "But in view of the large turnover and the legal implications involved, he (the Commercial Tax Officer) could have taken up the matter suo motu in revision. It is unnecessary for us to go into the merits of the case at this stage. We therefore direct the Commercial Tax Officer, North Madras, to take up this matter suo motu in revision and dispose of it on merits after giving a hearing to the appellants, i.e., the assessee." Against that order the Government preferred a revision petition. The High Court held that the Appellate Tribunal did not act in excess of its jurisdiction in giving such a direction which really amounted to an advice in the circumstances of the case. It was observed that when a tribunal comes across something which it itself has no jurisdiction to investigate and remedy anything obviously unjust, it is nothing unusual for such a tribunal to draw the attention of the authority which has got the powers of revisional jurisdiction or other jurisdiction to take up the question. 19. In the case of Commissioner of Sales Tax, Bihar v. Ganesh Abhushan Bhandar [1968] 22 S.T.C. 12, a Bench of this Court of which I was a member, observed as follows: The power of revision is bestowed by the Act on the Board of Revenue and is very wide and not circumscribed by any conditions. In that view, the Board was within its power to take view of the facts and circumstances of the case and to revise, if it thought necessary, the order passed by its subordinate authority, namely, the Deputy Commissioner. The Board's order, as we understand, really means this that the Deputy Commissioner in exercise of his revisional powers should have, in the circumstances of the present case, set aside the order of the Assistant Commissioner of Commercial Taxes refusing to review his order as passed on the 10th of December, 1960, striking off the memorandum of appeal of the assessee. It cannot be said that the order passed by the Board in the present case was without jurisdiction or was invalid otherwise. 20. In view of the decisions, referred to above, it must be held that the Tribunal had jurisdiction to set aside the orders of the Commissioner of Commercial Taxes and remand the cases to him for re-examining the points which had been raised by the assessees under Section 31(5) of the Act. 21. It now remains to consider a submission which was made by Mr. Shreenath Singh in the course of his argument. He submitted that on the facts of the instant cases it is not necessary to answer the question which has been framed in the two cases. To say the least, I was surprised when this contention was raised by the learned standing counsel No. 1. The two references having been made at the instance of the revenue, it is really difficult to comprehend as to why this attitude was adopted on behalf of the revenue. However, I will deal with the question whether the answer to the question is necessary or not. Mr. Shreenath Singh raised the contention that the application filed by the dealers were barred by limitation under Sub-section (4) of Section 31 and, as such, after the remand order those applications are bound to be rejected as time-barred by the Commissioner and, as such, it is not necessary to answer the question, Since this question has been raised by the learned standing counsel No. 1, I have to incidentally consider the question whether the applications filed by the dealers before the Commissioner under Section 31(5) were time-barred. It will be noticed that Sub-section (4) of Section 31 prescribes the limitation of sixty days from the passing of the order which is sought to be revised. It is manifest that this sub-section governs only revisional applications filed under Sub-sections (1), (2) and (3) and not an application filed before the Commissioner under Sub-section (5). As I have already pointed out, the outer limit for taking action under Sub-section (5) of Section 31 is four years from the date of the order which is the subject of scrutiny by the Commissioner. An application for taking action under Section 31(5) can, therefore, be filed by the dealer before the Commissioner at any time before the expiry of four years from the date of the order which is the subject of scrutiny by the Commissioner. Thus, there is absolutely no merit in the contention which has been raised by the learned standing counsel No. 1 that the applications filed by the dealers in the two cases were time-barred and, as such, it is not necessary to answer the question. 22. For the reasons already stated, I answer the common question framed in the two cases in the affirmative. I accordingly answer the common question in favour of the assessees (dealers) and against the revenue. In each case the assessee (dealer) will be entitled to costs. Hearing fee is assessed at Rs. 150 in each case. Sushil Kumar Jha, J.
I agree.