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Gujarat High Court
Judgename :A.P.RAVANI, SHARAD D.DAVE
M.RAVJI - Appellant
Versus
STATE - Respondent
S.C.A. 7 of 1990
Decided On : 07/24/1991
Bombay Sales Tax Act 1953 – Sections 31, 11 – Bombay Land Revenue Code – Section 211 – Whether on the facts and in the In negative in favour of the assessee circumstances of the case the Tribunal and against the revenue. was right in holding that the exercise of powers under Section 31 of the Bombay Sales Tax Act 1953 as per orders passed by which appeal orders are set aside is legal and valid – Whether on the facts and in the In affirmative in favour of the Revenue circumstances of the case the Tribunal and against the assessee. is right in holding that exercise of suo motu revision power by the Deputy Commissioner does not trench upon the power of rectification of the Assistant Commissioner of Sales Tax under the Bombay Sales Tax Act 1953 – Whether on the facts and in the In negative in favour of the assessee circumstances of the case the Tribunal and against the Revenue. is right in holding that the requirement of the exercise of the power of suo motu revision within a reasonable time as laid down by the Supreme Court in the case of State of Gujarat v. Patel Raghav Natha and Others would not be applicable to the provisions of the Bombay Sales Tax Act 1953 – Whether on the facts and in the In negative. in favour of the assessee circumstances of the case the Tribunal and against the Revenue. was right in holding that the power of suo motu revision cannot be said to be unreasonably exercised in the case of the applicant – Held, What is meant by this limitation is that at that particular stage appeal or rectification proceedings should not be pending. If at the stage of invoking the revisional powers in the same proceedings appeal is pending and the revisional authority seeks to exercise its suo motu power it may amount to trenching upon the powers of appellate authority – Similarly in a case where rectification proceedings are pending in the same proceedings the revisional authority may not be free to exercise its revisional powers conferred upon it – Only in such a situation the exercise of revisional power may amount to trenching upon the powers of appellate authority and or the authority exercising the powers of rectification – Where no such proceedings are pending before the appellate authority or before the authority exercising powers of rectification the exercise of powers by the revisional authority would not amount to trenching upon the powers of appellate authority or that of rectification authority – If such limitations constraints are to be read on the powers of the revisional authority as contended by the learned Counsel for the assessee then the power of the revisional authority would become illusory – No such limitation as is sought to be canvassed by the learned Counsel for the assessee can be read on this power – Reference Disposed of
( 1 ) THE dealer a dissolved partnership firm requested the Tribunal to make reference to this Court. The questions referred to are reproduced hereinafter. The relevant assessment period is as follows:1 April 1 L95 6/03/19572/04/195 7/10/19573/10/195 7/11/19584 November 12 195 8/02/1959the dealer was a registered partnership firm and was carrying on business of reselling oil. It was registered under the appropriate provisions of the Bombay Sales Tax Act 1953 The firm was dissolved on 22/02/1959 Before it was dissolved a search was made on the business premises of the firm and its books of accounts and other material were seized. For the aforesaid period assessment was made by the Sales Tax Officer. He passed four different orders and directed the assessee to pay Rs. 1 24 686. 18 ps. over and above the amount of Rs. 4 0 697. 57 ps. paid by it along with the returns. The aforesaid orders were passed by the Sales Tax Officer on 18/05/1967 Against the aforesaid assessment orders the dealer filed four different appeals before the Assistant Commissioner of Sales Tax. It was contended in the appeals that in view of the decision of the Supreme Court in the case of State of Punjab v. Jullunder Vegetables Syndicate reported in 17 S. T. C. page 325 a dissolved firm cannot be assessed. The Assistant Commissioner of Sales Tax followed the aforesaid decision and by his order dated 29/11/1967 set aside the order of assessment passed by the Sales Tax Officer.
( 2 ) THEREAFTER the things remained quiet upto 20/03/1976 on which date the Deputy Commissioner of Sales Tax issued a notice to the dealer stating that the matters were being taken up in suo motu revision. It appears that this action was taken on account of the decision of the Supreme Court in the case of Murarilal Mahavir Prasad and Ors. v. B. R. Vad and Other reported in 37 S. T. C. page 77. In that decision the Supreme Court held that under the Bombay Sales Tax Act 1953 a dissolved firm could be assessed or reassessed in respect of its turnover upto the date of its dissolution. In view of this decision the aforesaid notice was issued.
( 3 ) IN response to the notice the dealer appeared before the Deputy Commissioner of Sales Tax and raised several contentions on facts as well as on law points. The Deputy Commissioner however negatived all the contentions raised by the dealer and held as per his order dated 27/11/1980 that the order passed by the Assistant Commissioner of Sales Tax is not in accordance with law and the matters were remained to the Assistant Commissioner of Sales Tax for deciding the same on merits. It may be noted that the Assistant Commissioner of Sales Tax has disposed of the appeals only on the ground that a dissolved firm could not be assessed. He had not passed order on merits.
( 4 ) AGAINST the order passed by the Deputy Commissioner of Sales Tax the dealer preferred four different revision applications before the Tribunal. It was inter alia contended before the Tribunal that the exercise of revisional power under Section 31 of the Bombay Sales Tax Act 1953 was after a lapse of considerable time and after such an inordinate delay if the powers are exercised the same cannot be said to be reasonable exercise of power. Therefore the order passed by the Deputy Commissioner of Sales Tax should be set aside. The Tribunal rejected all the contentions raised by the dealer by its judgment and order dated 12/11/1982 The dealer thereafter applied for making reference of certain questions to this Court. The Tribunal drew the statements of the case and referred the following questions to this Court for its opinion. Our answers to the questions are indicated in the column opposite to each question:question Answer 1 Whether on the facts and in the In negative in favour of the assessee circumstances of the case the Tribunal and against the revenue. was right in holding that the exercise of powers under Section 31 of the Bombay Sales Tax Act 1953 as p
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