Patna High Court
Commissioner Of Commercial Taxes vs North Ramgarh Coal Company Private Ltd. on 31 January, 1974
Equivalent citations: [1974]33STC469(PAT)
Author: Nand Lall Untwalia
Bench: Nand Lall Untwalia, Nagendra Prasad Singh
JUDGMENT Nand Lall Untwalia, C.J.
1. An assessment order was passed in accordance with the Bihar Sales Tax Act, 1959 (hereinafter called the Act) by the assessing officer on 24th May, 1966. A copy of this assessment order is annexure A to the statement of the case. An appeal was preferred by the assessee. The Deputy Commissioner of Commercial Taxes, by his order dated 24th January, 1967, refused to entertain the appeal on the ground that the requisite amount of sales tax had not been deposited by the assessee before preferring the appeal. The assessee thought that there were obvious errors in the order of the Deputy Commissioner passed on 24th January, 1967. On 10th February, 1967, therefore, it filed an application for review before the Deputy Commissioner praying to him to review the order dated 24th January, 1967, and entertain the appeal. The Deputy Commissioner, by his order dated 11th September, 1967, rejected the review application and refused to review the order dated 24th January, 1967, and entertain the appeal. The assessee went up in revision before the Commercial Taxes Tribunal. One of the objections taken on behalf of the revenue before the Tribunal was that under the Act the revision filed before the Tribunal from the order dated 11th August, 1967, of the Deputy Commissioner was incompetent and should not be entertained. This objection was overruled. The Tribunal held that the revision was competent. It entered into the merits of the orders passed by the Deputy Commissioner and held that the assessee had paid the requisite amount of tax; therefore, the appeal filed before the Deputy Commissioner was fit to be entertained. The Commissioner of Commercial Taxes, by an application filed under Section 33(1) of the Act, asked the Tribunal to state a case and refer it to this court for determination of the question of law, which arose out of the revisional order of the Tribunal. The Tribunal refused to do it. The Commissioner came to this court and a Bench of this Court asked the Tribunal under Section 33(3) of the Act to state a case and refer to this court the following question of law:
Whether the Tribunal was legally competent to entertain the revision filed before it against the order dated 11th August, 1967, passed by the Deputy Commissioner of Commercial Taxes, Ranchi, on the review application of the dealer.
The Tribunal has accordingly done it and the short question which falls for our determination is whether the Tribunal was competent to entertain the revision filed by the assessee from the order dated 11th August, 1967, passed by the Deputy Commissioner.
2. The provision for appeal is contained in Section 30 of the Act. Reading Section 31(1) with Section 34A of the Act, it will read as follows:
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 Tribunal, if the said order has been passed by the Deputy Commissioner or the Commissioner.
Sub-section (2) confers a power of revision on the Tribunal to revise any revisional order passed by the Deputy Commissioner in exercise of his power under Section 31(l)(a). It is not necessary to refer to other sub-sections of Section 31 as no other sub-section is relevant for determination of the question before us. I will now read Section 32:
Subject to such rules as may be made by the State Government under this Act, any authority appointed under Section 8 or the Tribunal may review any order passed by it if such review is, in the opinion of the said authority or Tribunal, as the case may be, necessary on account of a mistake which is apparent from the record:
Provided that no such review, if it has the effect of enhancing the tax or penalty or both, or of reducing a refund shall be made unless the said authority or the Tribunal, as the case may be, has given the dealer a reasonable opportunity of being heard." (The word 'Board' has been read as Tribunal'.)
3. It would thus be seen that the power of review conferred under Section 32 is distinct from the appellate power conferred on the Deputy Commissioner under Section 30. If review is allowed and any order passed in appeal is changed then a revision would be competent before the Tribunal not from the order of review but from the fresh and substituted order passed in appeal; but when a review is dismissed then the order rejecting the review remains an order -- pure and simple -- passed under Section 32 of the Act. By construction, it is not possible to treat such an order as an order passed, in effect and substance, under Section 30 of the Act. That being so, no revision lay to the Tribunal from an order of the Deputy Commissioner refusing to review and hence the revision filed from the order dated 11th August, 1967, was incompetent. I may add that it was open to the assessee to go to the Tribunal in revision from the order dated 24th January, 1967. But the assessee did not choose to do so.
4. The Tribunal has relied upon a Bench decision of the Bombay High Court in Income-tax Appellate Tribunal, Bombay v. S.C. Cambatta and Co. Ltd. [1956] 29 I.T.R. 118, in support of its view that revision was competent. In my opinion, the ratio of the Bombay decision is not at all applicable to the point at issue. The Income-tax Appellate Tribunal had passed an appellate order. On being asked to state a case by the High Court, it stated a case on the question of law, on which it was asked to state. The question of law referred was answered in favour of the assessee in the first reference. The Appellate Tribunal then passed an order valuing the goodwill of the concern at Rs. 2,00,000. In its previous appellate order it had not included the value of the goodwill at all. The petitioner-company felt aggrieved by the second order of the Tribunal and by a fresh application under Section 66(1) of the Income-tax Act, 1922, asked it to state a case. The Tribunal refused to do so on the ground that the second application was not maintainable. A learned single Judge of the Bombay High Court entertained and allowed the writ application filed by the assessee and directed the Tribunal to state a case. The Tribunal filed a Letters Patent appeal. The argument before the Letters Patent Bench was that the second order of the Tribunal giving effect to the decision of the High Court passed in the earlier reference case was an order under Section 66(5) of the 1922 Act, it was not an order in appeal and, therefore, no reference application under Section 66(1) would lie from an order made by the Tribunal in accordance with Section 66(5). This argument was rejected and it was held that, in substance and in effect, the fresh order giving effect to the High Court's earlier order was an order in appeal and hence the reference application was competent. If I may say so with respect, the view taken by the Bombay High Court is correct. And if I can hazard a comparison by analogy, in substance and in effect, it will stand well with the example of allowing the review. If review is allowed and a fresh order is passed, then revision under Section 31(1) of the Act would be competent; but such a revision from an order refusing to review and maintaining the original order intact is not competent.
5. For the reasons stated above, I would answer the question of law referred to this court in the negative, against the assessee and in favour of the revenue. I accordingly hold that the Tribunal was not legally competent to entertain the revision filed before it against the order dated 11th August, 1967, passed by the Deputy Commissioner of Commercial Taxes, Ranchi, on the review application of the dealer. In the circumstances, there will be no order as to costs in this reference.
N.P. Singh, J.
I agree.