The main legal point established is that the Commissioner must comply with the provisions of section 46(5) of the Bihar Finance Act and provide an opportunity of hearing to the affected parties before passing an order in exercise of suo motu power.

1. Heard learned counsel for the parties.

2. The present writ application has been filed by the petitioner challenging the order dated 3.10.2001 passed by the Commissioner of Commercial Taxes Bihar, Patna in exercise of revisional power under section 46 of the Bihar Finance Act, by which whiie upholding the order of the assessing authority, as it appears from para-4 of the order, he has directed the authorities to reexamine the matter with regard to two mattes, namely, re-examining the matters in the light of the forms made available at the revisional stage and the question of transit sales after holding enquiry as envisaged under section 3(b) and section 6(2) of the Central Sales Tax Act.

3. The facts necessary for disposal of this writ application are that the petitioner is an assessee under the Bihar Sales Tax Act as well as Central Sales Tax Act. The assessing authority passed an order of assessment for assessment year 1995-96 under Central Sales Tax Act, assessment year 1996-97 under Bihar Sales Tax Act and assessment year 1996-97 under Central Sales Tax Act. The present matter relates to the assessment year 1995-96 under Central Sales Tax Act. The petitioner filed revision before the revisional authority. The statutory forms which were not made available before the assessing authority were also filed and taking into consideration the facts of the case, the revisional authority i.e. the Commissioner of Commercial Taxes, held that he did not find any infirmity in the order of the assessing authority in absence of proof of statutory forms. He, however, directed the assessing authority to consider the matter again taking into consideration the forms made available by the petitioner. The Commissioner also suo motu interfered with the order of assessment with regard to other claims which were already allowed by the assessing authority which were related to transit sales. The Commissioner having noticed that the enquiry as envisaged under section 3(b) and section 6(2) of the Central Sales Tax Act were not held before allowing the claim regarding transit sales, remanded the matter to pass a fresh order after due enquiry.

4. It was submitted on behalf of the petitioner that no doubt in exercise of revisional power under section 46 of the Bihar Finance Act, the Commissioner can suo motu call for the records to consider the legality and propriety of the order and pass appropriate order after perusal of the record or after holding enquiry or delegating the same to other authority, but he can exercise suo motu power only after giving an opportunity of hearing to the persons concerned as provided under section 46(5) of the Bihar Finance Act with regard to the matters which are not pending for decision at the instance of either the assessee or the Department.

5. Learned counsel appearing for the respondents, on the other hand, submitted that the Commissioner having heard the parties on all the points, has remanded the matter and thus the order cannot be faulted on the ground that no opportunity was given to the petitioner while remanding the matter with regard to transit sale.

6. Section 46 of the Bihar Finance Act vests power of revision in the Commissioner. Sub-sections (4) and (5) of section 46 read as follows :

"(4) The Commissioner may, on his own motion call for and examine the records of any proceeding in which any order has been passed by any other authority appointed under section 9, for the purpose of satisfying himself as to the legality or propriety of such order and may, after examining the record and making or causing to be made such enquiry as he may deem necessary, pass such order as he thinks proper.

(5) No order under this section shall be passed without giving the appellant as also the authority whose order is sought to be revised or their representative, a reasonable opportunity of being heard."

7. A conjoint reading of the aforesaid provisions shows that even if the order passed by the subordinate authority