IMPORTANT POINT
Prohibition against revising an appellant order in Rule 80 of Orissa Sales Tax Rules should be taken as applying only to an appellate order which is passed after considering any issue arising in appeal and would not cover an order rejecting appeal at threshold.

JUDGMENT

Mrs. Sujata V. Manohar, J.-The respondent is a partnership firm carrying on business as agents of Hindustan Lever Ltd., Indian Oil Corporation and various other corporations. The respondent carries on whole-sale business in the products of these companies and has its registered office at Kanatabanji District Bolangir in the State of Orissa. For the assessment year 1969-70 the respondent was assessed under Section 12(4) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as the said Act) by order dated 23.9.1970. Thereafter on 26.11.1970, the Vigilance Unit of the Sales Tax Department seized the books of account and other documents of the respondent. On the basis of the report which was submitted by the Vigilance Unit the assessment for assessment year 1969-70 was reopened. The respondent was reassessed under Section 12(8) of the said Act under an order dated 27.5.1972. By another order of the same date, namely 27.5.1972, an assessment order for assessment year 1970-71 was also passed under Section 12(4) of the said Act. The respondent filed appeals in respect of both these orders. The appeals were defective. The requisite court fees were not paid and the memo of appeal did not contain grounds of appeal. The respondent was called upon to remove these defects by the office of the Sales Tax Department. But despite reminders and notices, the respondent did not remove these defects; with the result that the appeals were summarily rejected under Rule 49 of the Orissa Sales Tax Rules.

2. By notices dated 15th of March, 1975 issued under Rule 80 of the Orissa Sales Tax Rules, the Commissioner of Sales Tax in exercise of his powers under Section 23(4) of the said Act proposed revising the assessment orders dated 27.5.1972 for assessment years 1969-70 and 1970-71. The Commissioner proposed a suo motu revision of the said orders because in his opinion the respondent had been under-assessed and a large amount of turn-over had escaped assessment. These notices were served on the respondent on 21-3-1975. Pursuant to the said notices, the respondent appeared before the Commissioner of Sales Tax. After taking several adjournments the respondent requested the Commissioner of Sales Tax for reasons for issuing the notice of suo motu revision. The reasons were thereupon communicated to the respondent on 2.5.1975. Hearing of the case was fixed on 7.5.1975. The respondent made his submissions in writing before the Commissioner of Sales Tax. These submissions were considered by the Commissioner of Sales Tax. The respondent, however, did not explain the accounts or the entries appearing in the seized documents. By a detailed order dated 26.5.1975, the Commissioner of Sales Tax, after considering the submissions made by respondent, revised the assessment orders and demanded excess taxes to the tune of Rs. 1,12,620 for the assessment year 1969-70 the Rs. 79,710 for the assessment year 1970-71.

3. The respondent filed writ petitions before the High Court of Orissa being O.J.C. Nos. 1680 and 1681 of 1975 challenging the said orders of the Commissioner of Sales Tax. The challenge was two-fold. The respondent challenged the jurisdiction of the Commissioner of Sales Tax under Section 23(4) of the said Act read with Rule 80 of the Orissa Sales Tax Rules to revise the assessment. The respondent also submitted that it had not been given a reasonable opportunity of hearing before the Commissioner of Sales Tax. Both these contentions were upheld by the High Court which quashed the impugned orders dated 26.5.1975. The present appeals are from the judgment and order of the High Court dated 28.4.1977.

4. Section 23(4) of the said Act is as follows :

"23(4)(a) : Subject to such rules as may be made and for reasons to be recorded in writing the Commissioner, may, upon application by a dealer or on his motion revise any order made under this Act or the rules made thereunder by any person other than the Tribunal or Additional Tribunal, as the case may be, ap