JUDGMENT :

R. B. Misra, J.

Heard Mr. Rakesh Sharma, Learned Counsel for the petitioner and Mr. R. K. Sharma, senior advocate/Senior Additional Advocate-General, for the respondents. The present petition has been preferred with the following prayers :

(i) Quash the impugned notice dated April 22, 2011 of respondent No. 2 issued u/s 46(1) of the H. P. Value Added Tax Act, 2005 (annexure P6).

(ii) Issue writ of mandamus directing respondent No. 5 to comply with appellate order dated July 27, 2011 (annexure P5) passed by respondent No. 3 in appeals.

2. The petitioner is a registered dealer under the provisions of the H. P. Value Added Tax Act, 2005 (in short called ''the Act" hereinafter) and Central Sales Tax Act, 1956. The petitioner has set up its unit and is registered as small-scale industrial unit with District Industry Centre and is dealing in tyre retreading work. The assessment order for the year 2004-05 was passed by the assessing authority on June 30, 2009 vide annexure P2. An appeal against the said order was preferred before the Additional Excise and Taxation Commissioner-cum-Appellate Authority (South Zone), which was adjudicated vide order dated January 29, 2010 (annexure P3), thereby the matter was relegated back to the assessing authority. In compliance to the said order, a reassessment order dated March 31, 2010 was passed for said year along with other years.

3. Being aggrieved, the petitioner has also preferred an appeal u/s 45 of the Act read with section 30 of the H. P. General Sales Tax Act, 1968. The said appeal was disposed of on July 27, 2010 by the Additional Excise and Taxation Commissioner-cum-Appellate Authority (South Zone), relegating the matter to the assessing authority with the direction to pass a speaking order in accordance with the directions given in order dated January 29, 2010. It appears that the Excise and Taxation Commissioner-cum-Appellate Authority, in exercise of its power u/s 46(1) of the Act, issued a notice to the petitioner calling upon the petitioner to give his response. The said notice has been challenged by the petitioner before this Court in the present writ petition. this Court, however, on June 3, 2011 was pleased to give liberty to the petitioner to file reply to the impugned notice, with further liberty to the Commissioner to pass a speaking order with an observation that such order passed by the Excise and Taxation Commissioner shall not be given effect to without the permission of this Court.

4. The Excise and Taxation Commissioner, however, after considering the order dated July 27, 2010 (passed by the Additional Commissioner) and also considering the notice in question, has disposed of Revision No. 50/ 2010-11 vide order dated November 19, 2011 which has, however, not been challenged by way of revision before this Court.

5. Mr. Rakesh Sharma, Learned Counsel for the petitioner, has argued that the Commissioner (Excise and Taxation) cannot exercise its revisional power u/s 46 of the Act, for testing the validity and legality of the order dated July 27, 2010 passed by the Additional Commissioner (Excise and Taxation) in his capacity of an appellate authority. It has also been argued that the appellate authority cannot be treated to be authority, subordinate to the Commissioner (Excise and Taxation) for the purpose of section 46 of the Act. In all fairness, Learned Counsel for the petitioner submitted that no appeal has been preferred before the Tribunal against the order dated November 19, 2011 passed by the Commissioner (Excise and Taxation). Mr. Sharma has also submitted that in view of the section 46(3) of the Act, the limitation period for preferring the petition is 60 days and during the pendency of the present writ petition, such period has already been elapsed, as such, in view of these facts and circumstances, no useful purpose shall be served to approach again before the Tribunal for adjudication of the petition.

6. On the other hand, Mr. R. K. Sharma, senior advocate/