H.B. Munshi, Commissioner Of Sales Tax, ... vs The Oriental Rubber Industries Pvt. ... on 16 March, 1974
In connection with this question, it would not be out of place to refer to a decision of a Division Bench of this Court in H. B. Munshi, Commissioner of Sales Tax, Bombay v. Oriental Rubber Industries Pvt. Ltd. [[1974] 34 S.T.C. 113]. Although the question in that case was somewhat different, some of the observations in the judgment are useful for the determination of the question before us and lend some support to the view which we have taken as indicated above. In that case, the petitioner-company, carrying on the business of manufacturing rubber beltings, was registered as a dealer under the said Act, viz., Bombay Sales Tax Act, 1959. The petitioner bad collected sales tax on the sales of rubber beltings at the rate of 3 per cent. However, the Sales Tax Officer took the view in his assessment orders that the petitioner was liable to pay sales tax at 5 per cent on the sale of rubber beltings. On appeal by the assessee, the Assistant Commissioner held that no sales tax was at all attracted on the sales of rubber beltings by the petitioner but he passed orders forfeiting to the Government under section 37 of the said Act the amounts collected as sales tax by the petitioner. The petitioner preferred second appeals, which were heard by the Deputy Commissioner, who set aside the order of forfeiture and directed the amounts to be refunded to the petitioner. Subsequently, the Commissioner of Sales Tax revised the orders of the Deputy Commissioner, and forfeited to the Government under section 37 of the said Act the amounts collected as sales tax by the petitioner. The petitioner filed a writ petition in this court where the principal contention of the petitioner was that when the Deputy Commissioner passed the orders in the appeals from the Assistant Commissioner's orders, he was exercising the powers of the Commissioner under section 55(1)(b) as a statutory delegate of the Commissioner and, therefore, the orders made by the Deputy Commissioner must be deemed to be the orders made by the Commissioner himself and it was not open to the Commissioner to revise such orders in exercise of his powers under section 57 of the said Act. This contention was accepted by a learned single Judge of this Court but on appeal it was held by the Division Bench of this Court which disposed of the appeal that the Deputy Commissioner exercised powers and performed functions conferred upon him under the Act in his own right and not as a delegate or an agent of the Commissioner and, therefore, the orders passed by the Deputy Commissioner in the second appeals were clearly revisable by the Commissioner under section 57(1)(a) of the said Act. It was held in that case that on a plain reading of sub-section (5) of section 20, there was no question of their being any statutory delegation in respect of powers and duties to the Deputy Commissioner and it could not be said that the Deputy Commissioner, when exercising the powers conferred upon him by enactment, was a delegate of the Commissioner or an agent of the Commissioner. Although in that case it was not disputed that the Deputy Commissioner exercising his power or performing his functions under sub-section (5) of section 20 would be one of the officers appointed to assist the Commissioner (see page 123 of the Reports), yet there are certain observations in the judgment of the Division Bench, which are relevant for the purpose of the case before us, and these are as follows (page 124 of the Reports) :