IMPORTANT POINT
Under Section 23(4)(a) of Orissa Sales Tax Act r/w rule 80, the Commissioner has suo motu power to revise an appellate order.

Headnote:Orissa Sales Tax Act-Section 23(4) r/w Rule 80 of Orissa Sales Tax Rules-Suo motu revision against appellate order passed by Assistant Commissioner of Sales Tax-Commissioner has suo motu power to revise an appellate order.
       Held : The question, therefore, which requires consideration is whether an appellate order passed under sub-section (2) of Section 23 of the Act comes within the ambit of the expression "any order made under the Act" occurring in Section 23(4)(a) of the Act. The language used in Section 23(4)(a) is plain, simple and there is no ambiguity in it. A plain reading of Section 23(4)(a) shows that the expression "any order made under the Act" is of a wide connotation and it includes an assessment order as well as an appellate order passed under the Act. This construction placed on the said expression neither runs contrary to the scheme envisaged in Section 23 of the Act nor it leads to any undesirable consequences, as observed by the High Court. We are, therefore, of the opinion that under Section 23(4)(a) of the Act, the Commissioner on his own motion can revise any order, including an appellate order made under the Act or the Rules by a person other than the Tribunal or additional Tribunal. (Para 10)
       Further held : The proviso to Section 23(4)(a) contemplates that the Commissioner shall not exercise any revisional jurisdiction at the instance of a dealer or person when he has a remedy by way of an appeal under sub-section (3) of Section 23 of the Act. Thus, the Commissioner is not required to entertain an application under Section 23(4)(a) of the Act if the dealer or person instead of filing an appeal before the appellate authority has invoked revisional jurisdiction of the Commissioner. But, the same is not the position where the Commissioner decides to exercise his suo motu revisional power to revise an appellate order. Significantly, the words "on his own motion" occurring in the enactment are conspicuously absent in the proviso. Normally, a proviso is enacted to carve out something special out of the general enactment or to qualify what is in the enactment. By enacting the proviso the legislature has excluded the revisional jurisdiction of the Commissioner Sales Tax to revise an appellate order if invoked at the instance of a dealer or person when such dealer or person when such dealer or person has a remedy by way of an appeal. As noticed earlier, the limitation on the suo motu power of the Commissioner as to revise an appellate order has not been expressly provided in the proviso. In the absence of any expressed provisions, no limitation on suo motu power of the Commissioner to revise an appellate order can be implied. We, accordingly hold that the provisions of proviso to sub-section (4)(a) of Section 23 of the Act do not prohibit the Commissioner to exercise suo motu revisional power to revise an appellate order. (Para 11)

JUDGMENT

V.N. Khare, J.-Leave granted in all the matters.

2. These appeals by special leave, raise the question "whether the Commissioner of Sales Tax, suo motu can revise under clause (a) of sub-section (4) of Section 23 of the Orissa Sales Tax Act (in short "the Act") read with rule 80 of the Orissa Sales Tax Rules (in short "the Rules"), an appellate order passed by the Assistant Commissioner of Sales Tax."

3. The respondent herein is a registered dealer under the Act and running a wholesale business in purchase and sale of beetle nuts at Malgodown, Cuttack. In pursuance to the notices issued under Section 12(4) of the Act, the respondent appeared before the concerned Sales Tax Officer and produced the books of accounts for the relevant assessment years for verification. The Sales Tax Officer rejected the books of accounts produced by the respondent-dealer and completed the assessments to the best of his judgment. Feeling aggrieved by the same, the respondent-dealer preferred appeals before the first appellate authority, namely, the Assistant Commissioner of Sales Tax, Cuttack, under Section 23(1) of the Act. The appellate authority by its orders allowed the appeals in part for the assessment year 1992-93 and in full for the assessment year 1993-94. Thereafter, the Additional Commissioner of Sales Tax, exercising his suo motu revisional power conferred under Section 23(4)(a) of the Act read with rule 80 of the Rules, issued notices dated 9.6.1995 to the respondent-dealer to show cause as to why should the appellate orders passed by the Assistant Commissioner of Sales Tax be not revised, the same being erroneous and prejudicial to the interest of the Revenue. It is at this stage, the respondent-dealer challenged the said notices by means of writ petitions under Articles 226 and 227 of the Constitution of India before the High Court of Orissa. The contention of the respondent dealer before the High Court was that the Commissioner of Sales Tax has no jurisdiction to issue the impugned notices. The High Court quashed the impugned notices and allowed the Original Jurisdiction Cases No. 4496 and 4497 of 1995. Want of jurisdiction in Additional Commissioner of Sales Tax in issuing the impugned notices to the respondent dealer was found by the High Court on two grounds. Firstly, the appellate order passed by the Assistant Commissioner of Sales Tax was not an order within the meaning of expression "order made under this Act" occurring in clause (a) of sub-clause (4) of Section 23 of the Act and, secondly, the proviso to sub-section (4)(a) of Section 23 places a limitation on the exercise of revisional power by the Commissioner when it concerns an appellate order.

4. Before we advert to the reasonings given by the High Court in allowing the writ petition, it is appropriate to notice the decision of this Court in the case of State of Orissa & Ors. v. Krishna Stores1, wherein this Court was called upon to interpret clause (a) of sub-section (4) of Section 23 of the Act, which is the subject matter for consideration before us, and unamended rule 80 of the Rules. In that case a dealer successfully challenged the notice issued to him under Section 23(4)(a) of the Act read with unamended rule 80 of the Rules before the High Court of Orissa on the ground that issue of notice to revise an appellate order is without jurisdiction. This Court while interpreting Section 23(4)(a) of the Act was of the view that, in the context of Section 23(4) where the words "other than an appellate order" are absent, there is no limitation on the power of the Commissioner exercising suo motu power as to revise an appellate order. This Court held thus:-

"Under Section 23(4) the Commissioner can, inter alia, on his own motion revise any order made under this Act or the Rules by any person other than a Tribunal or an additional Tribunal. Therefore, under this sub-section the Commissioner is not expressly prevented from revising an appellate order if made by any person

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1997 Supreme(SC) 1289

IMPORTANT POINTUnder Section 23(4)(a) of Orissa Sales Tax Act r/w rule 80, the Commissioner has suo motu power to revise an appellate order.

Cases Referred (1)

IMPORTANT POINT
Under Section 23(4)(a) of Orissa Sales Tax Act r/w rule 80, the Commissioner has suo motu power to revise an appellate order.