The power vested in the Commissioner to call for the record of pending proceedings or decided cases to satisfy himself as to the legality and/or propriety of the pending proceedings or final order cannot be used for dealing with a case of escaped assessment which is the exclusive preserve of the Assessing Authority.

G. S. SINGHVI, J. - This is a petition for issuance of a writ in the nature of certiorari for quashing orders, annexures P3, P3/A and P3/B passed by the Deputy Excise and Taxation Commissioner (1)-cum-Authority, Karnal (respondent No. 2) and order, annexure P4, dated August 6, 1999 passed by Sales Tax Tribunal, Haryana (for short, "the Tribunal").

The petitioner is a Haryana Government undertaking. It is registered as a dealer under the Haryana General Sales Tax Act, 1973 (for short, "the Act") as well as the Central Sales Tax Act, 1956. It filed returns for the years 1985-86, 1986-87 and 1987-88 on due dates. The Assessing Authority, Panipat, finalised the assessment vide orders annexures P1, dated March 14, 1990, P1/A dated October 31, 1991 and P1/B dated March 23, 1992. After almost four years from the finalisation of assessment for the year 1985-86, three years from the date of finalisation of assessment for the year 1986-87 and almost two years from the finalisation of assessment for the year 1987-88, respondent No. 2 issued notices dated February 18, 1994 under section 40 of the Act proposing suo motu revision of the assessment orders on the ground that the amount received by the petitioner in the form of hiring and service charges had escaped levy of tax at the hands of Assessing Authority. The petitioner challenged the jurisdiction of respondent No. 2 to initiate action under section 40 of the Act by contending that the assessment orders did not suffer from any impropriety or illegality. On merits, it contested the notices by asserting that the so-called hiring and services cannot be treated as covered by the definition of "sale" because there was no transfer of property in goods either for cash or deferred payment. The petitioner also asserted that tractors, etc., were made available to the farmers with its own drivers/labour and mechanical staff for harvesting their crops, etc., without allowing them even to touch the machines. After considering the reply filed by the petitioner, respondent No. 2 passed orders, annexures P3, P3/A and P3/B, and revised the assessment orders for all the three years. Appeals filed by the petitioner under section 39(1)(c) of the Act were dismissed by the Tribunal by a common order dated August 6, 1999 (annexure P4). Review petitions filed by it under section 41 of the Act were also dismissed by the Tribunal by a common order dated April 24, 2000 (annexure P5).

The petitioner has challenged the orders, annexures P3, P3/A, P3/B and P4, on the following grounds :

1. The proceedings initiated by respondent No. 2 for revising the assessment orders were ultra vires to section 40 of the Act because the notices issued under that section did not speak of any illegality or impropriety in the orders passed by the Assessing Authority and the case of escaped assessment do not fall within the jurisdiction of Revisional Authority.

2. The notice issued by respondent No. 2 was time-barred qua assessment year 1985-86.

3. The orders passed by respondent No. 2 and the appellate order passed by the Tribunal are vitiated by error of law apparent on the face of the record because neither of them considered the petitioner's plea in a correct perspective.

4. While holding the petitioner liable to tax in lieu of hiring and service charges collected from the farmers, respondent No. 2 and the Tribunal did not take into consideration the peculiar nature of the operation undertaken by it.

The respondents have defended the impugned orders by contending that the Assessing Authority had, while passing the orders of assessment, overlooked the evidence available on record regarding hiring and service charges. According to them, the absence of the words "illegality" or "impropriety" in the notices issued by respondent No. 2 cannot be made basis for quashing the revisional orders. They have also averred that the activities of the petitioner fall within the definition of "sale" as amended by Haryana Act No. 11 of 19