Commercial Taxes Officer vs Kamal and Company

J.S. Verma, C.J.—This is a revision by the department against the order dated 1st January, 1973 passed by a Division Bench of the Board of Revenue in a special appeal against the order dated 16th September, 1970 passed by a Single Bench of the Board of Revenue in a revision.

The assessee preferred an appeal to the Deputy Commissioner (Appeals) being aggrieved by the order of the assessing authority disallowing certain deductions and imposing a penalty of Rs. 13,000 u/s 16(1)(c) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act") for late submission of the return for the period 1961-62. The Deputy Commissioner (Appeals) partly allowed the claim for deductions as well as penalty by order dated 23rd January, 1967 and reduced the amount of penalty from Rs. 13,000 to Rs. 3,000. The department alone filed a revision to the Board of Revenue under Sub-section (1) of Section 14 of the Act on 3rd May, 1968. The assessee did not prefer any revision as provided in Sub-section (2) of Section 14 of the Act and accepted the appellate order of the Deputy Commissioner (Appeals). However, in the revision filed by the department before the Board of Revenue, the assessee filed a cross-objection challenging the imposition of penalty even to the extent of Rs. 3,000. A Single Bench of the Board of Revenue dismissed the department''s revision as well as the cross-objection therein of the assessee. The assessee then preferred a special appeal u/s 14(4A) of the Act to a Division Bench of the Board of Revenue, which has been allowed by the impugned order passed on 1st January, 1973. It has been held that the imposition of any penalty was illegal and, therefore, even the penalty of Rs. 3,000 upheld on appeal by the Deputy Commissioner (Appeals) against which no grievance was made by the assessee by filing a revision u/s 14(2) has been set aside. Hence this revision by the department.

It may be stated at the outset that Sub-section (2) of Section 14 of the Act contains an express provision for revision by the assessee which could have been resorted to for challenging the Deputy Commissioner''s order upholding imposition of penalty to the extent of Rs. 3,000. The limitation prescribed for revision by the assessee is six months thereunder. No revision was filed by the assessee at any time and even the so-called cross-objection filed in the department''s revision preferred under Sub-section (1) of Section 14 of the Act was much after expiry of the period of six months from the date of the Deputy Commissioner''s order so that it could not be treated as the assessee''s revision u/s 14(2). It is conceded that there is neither any provision for filing a cross-objection in the department''s revision under Sub-section (1) of Section 14 akin to Order 41, Rule 22, C. P. C., nor is there any provision enabling exercise of suo motu powers of revision by the Board. The only question, therefore, is whether in the department''s revision preferred u/s 14(1) of the Act it was permissible for the Board of Revenue to make an order prejudicial to the Revenue who had preferred the revision. Section 14(1) of the Act reads as under :

Revisions.-(1) The Board of Revenue may on being moved by any officer authorised in this behalf by the Commissioner by any general or special order call for and examine the records of any proceedings not being proceedings under the provisos to Sub-section (3) of Section 11 or an order of the Commissioner u/s 12B or Section 17A under this Act and if it considers that any order is illegal or improper or erroneous it may pass such order as it thinks fit :

Provided further that the Board of Revenue shall not revise an order against which an application for revision has not been made within three years of the passing of such order.

Learned counsel for the department contended that the expression "such order as it thinks fit" occurring at the end of Sub-section (1) of Section 14 must be construed ejusdem generis so as to limit its exercise within the scope of the revision filed by the department and its meaning cannot be enlarged to enable grant of any benefit to the assessee who has been given the right of revision under Sub-section (2) or to make an order prejudicial to the Revenue. It is urged that the Board of Revenue could at best have dismissed the revision of the department, but it could not therein grant any further relief to the assessee which was denied in the impugned order and against which no grievance was made by the assessee by filing a revision under Sub-section (2). In reply learned counsel for the assessee contended that the power given to the revising authority under Sub-section (1) is wider than the power given in Sub-section (2), since Sub-section (2) limits the exercise of revisional power prohibiting the authority from making any order prejudicial to the assessee, whereas there is no such limitation contained in Sub-section (1).

In my opinion, Sub-section (1) of Section 14 cannot be construed to confer the wide power of revision as suggested by learned counsel for the assessee. The context in which the expression "such order as it thinks fit" occurs in Sub-section (1), clearly confines the exercise of that power to the scope of the revision. It merely means that any order which the authority thinks fit to make within the scope of the revision preferred by the department may be made. The absence of any specific provision for filing a cross-objection or a provision conferring SMO motu powers of revision is a clear indication that the revisional power under Sub-section (1) is restricted notwithstanding the further limitation prescribed in Sub-section (2). This power of revision under Sub-section (1) is not an appellate power of rehearing the entire matter, but is confined only to making a suitable order within the scope of the department''s revision. A separate provision for revision by the assessee conferred by Sub-section (2) is also an indication of the limited scope of the department''s revision provided in Sub-section (1). The amendment made in Section 14 subsequently is also significant. The amended section provides for an appeal to the Tribunal and makes express provision for filing cross-objections. It is obvious that the power of revision contained in Sub-section (1) of Section 14 cannot be equated with the power conferred in appeal by a subsequent amendment. This also supports the above conclusion.

The decision of the Supreme Court in Ram Kanai Jamini Ranjan Pal Pvt. Ltd. Vs. Member, Board of Revenue, W. Bengal, considers a similar provision and indicates that the revisional power is narrower than the appellate power and the conferment of suo motu power of revision enlarges the scope of revisional powers. As already indicated there are words of limitation used in Sub-section (1) and there is a separate right of revision given to the assessee under Sub-section (2). In addition, there is no suo motu power of revision under this Act and there is also no provision for cross-objection in a revision. Subsequent amendment in the Act providing for an appeal and filing of cross-objections therein also indicates the restricted revisional power under Sub-section (1) of Section 14 involved for interpretation in this matter.

From the above discussion it follows that the Division Bench of the Board of Revenue misconstrued Sub-section (1) of Section 14 of the Act to hold that a cross-objection filed in the department''s revision preferred thereunder was tenable for granting relief to the assessee who had failed to avail the right of revision available to it under Sub-section (2) of Section 14 of the Act.

Accordingly the revision is allowed. The order dated 1st January, 1973 passed by the Division Bench of the Board of Revenue in the special appeal is set aside and that of the Single Bench of the Board of Revenue dated 16th September, 1970 is restored. No costs.