Judgment

R. S. PATHAK, J.:- This appeal by special leave raises the important question whether the Commissioner of Sales Tax can revise under Cl. (4) of sub-section (1) of Section 57 of the Bombay Sales Tax Act, 1959, an appellate order passed by the Asstt. Commissioner when the assessees second appeal against that order is pending before the Maharashtra Sales Tax Tribunal.

2. The appellant is a partnership firm, carrying on the business of manufacturing and selling vegetable oil. The Sales Tax Officer estimated the turnover for the calendar year 1971 and made an order dated 26th March, 1973 levying sales tax at Rs. 73,198.62 and a penalty of Rs. 36,197-64. On the same date, another assessment order was made for the first six months of the year 1972. where again on the basis of an estimate the Sales Tax Officer computed the tax at Rs. 81,745.71 and levied a penalty of Rs. 37,572.216. The two assessment orders were apparently made under S. 33 of the Bombay Sales. Tax Act, 1959. Against the assessment and penalty orders for the two periods, the appellant appealed under Cl. (a) of sub-section (1) of S. 55 of the Act to the Assistant Commissioner. By a common order dated 29th Sep., 1973 the Assistant Commissioner reduced the quantum of the turnover and, consequently, the tax liability to Rs. 30,494.67 and the penalty to Rupees 11,745.71 for the first period and a tax liability of Rs. 16,447.33 and penalty of Rupees 5,572.26 for the second period. Not fully satisfied by the relief granted, the appellant proceeded in second appeal to the Maharashtra Sales Tax Tribunal on 8th Dec., 1973. During the pendency of the appeals before the Tribunal, the Deputy Commissioner, Nagpur issued two notices to the appellant on 24th April, 1974 requiring it to show cause why the appellate orders dated 29th Sep., 1973 passed by the Assistant Commissioner should not be revised under Section 57 of the Act. The appellant objected to the exercise of revisional power by the Deputy Commissioner during the pendency of the appeals before the Tribunal. On 12th Sep., 1975 the Deputy Commissioner rejected the objection. Against the order of rejection the appellant filed two appeals before the Tribunal, and by its order dated 27th Oct., 1977 the Tribunal dismissed the appeals. At the same time, the Tribunal adjourned the two second appeals filed by the appellant against the appellate orders dated 29th Sep., 1973 passed by the Asstt. Commissioner. The Tribunal took the view that its deciding those appeals would result in nullifying the revisional power vested in the Deputy Commissioner.

3. The appellant filed a writ petition in the High Court of Bombay against the order of the Deputy Commissioner dated 12th Sep., 1975 rejecting its preliminary objection and also against the order passed by the Tribunal on 27th Oct., 1977 dismissing his appeals, as well as the notices issued by the Deputy Commissioner on 24th April, 1974 in the purported exercise of his revisional power.

4. The only point pressed by the appellant before the High Court was that the Commissioner of Sales Tax could not exercise his revisional power against the appellate order of the Assistant Commissioner when a second appeal against that order was pending before the Tribunal. The High Court turned down the plea by its order dated 5th July, 1978, observing that it was always open to the Commissioner to interfere in revision with an order prejudicial to the Revenue notwithstanding that such order may be already under appeal before the Tribunal. The High Court felt compelled to take this view because, in its opinion, the statute did not provide any other forum or jurisdiction for protecting the interests of the Revenue. It relied on its earlier judgment in Commr. of Sales Tax v. Motor and Machinery Manufacturers Ltd., (1976) 38 STC 78, and also sought support from the observations of this Court in Commissioner of Income-tax v. Amritlal Bhogilal, 34 ITR 130. It spoke further of "the anomaly of overlapping j