JUDGMENT
Jeevan Reddy, J.
1. This appeal is preferred against the order of the Commissioner of Commercial Taxes, passed in exercise of the power of revision conferred upon him by sub-section (1) of section 20 of the Andhra Pradesh General Sales Tax Act (hereinafter called the Act).
2. The relevant facts are the following : On the basis of the return filed by the assessee, assessment was made on 2nd February, 1979, by the assessing authority. The assessee says that certain sales which were really second sales were subjected to tax inasmuch as he could not produce the E-II forms before the assessing authority. He says that the said forms could not be filed by him before the assessing authority inasmuch as they were not made available to him by the out-State dealer in time. After receiving the E-II forms from the out-State dealer, the petitioner says, he filed a revision under sub-section (2) of section 20 of the Act before the Deputy Commissioner. He enclosed E-II forms to his revision petition. The Deputy Commissioner entertained the revision and taking into consideration the E-II forms filed by the assessee, remanded the matter to the C.T.O. He directed the C.T.O. to take into consideration the said forms and pass appropriate orders. Accordingly, the C.T.O. granted the appropriate relief to the petitioner on 27th September, 1982.
3. On 28th February, 1986, the Commissioner initiated proceedings to revise the order of the Deputy Commissioner dated 21st June, 1982. After hearing the assessee, the Commissioner passed the impugned order holding that the Deputy Commissioner was not competent to exercise the power of revision vested in him under sub-section (2) of section 20 of the Act at the instance of the assessee. He was of the opinion that the said power can be exercised by the Deputy Commissioner only in the interest of Revenue, where the orders of the assessing authority result in loss of revenue. That this is the basis upon which the Commissioner has allowed the revision, is evident from the following extracts from his order :
“This power of revision has, therefore, been bestowed to be exercised suo motu only to rectify such errors resulting in loss of revenue …………….. The very fact that two different sections – one for appeal under section 19 and one for revision under section 20 were provided, clearly shows that the intention of the legislature is very clear that one cannot invoke the revisionary powers, where the appellate powers are to be taken resort to. I do not, therefore, see any excuse or force in the argument of the dealer that in the absence of proper and adequate reasons, he had to move the revisionary jurisdiction of the Deputy Commissioner without exhausting the earlier and alternative remedy of appeal ……………… The main philosophy of section 20 of the A.P.G.S.T. Act is to correct blatant irregularities, mistakes and to rectify them in the interest of the Government revenues, and not, when the Government revenues are affected as in the present case.”
4. The correctness of this view of the Commissioner is challenged in this special appeal.
5. Against the orders of assessment, a right of appeal is provided to the assessee by section 19 of the Act. A second appeal is also provided to the Appellate Tribunal by section 21. Section 20 confers a power upon the Commissioner and certain other officers to suo motu call for and examine the record of any order passed or proceeding recorded by any subordinate authority or officer.
6. Sub-sections (1) and (2) of section 20 of the Act read as follows :
“20. Revision by Commissioner of Commercial Taxes and other prescribed authorities. – (1) The Commissioner of Commercial Taxes may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section, for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding any may pass such order in reference thereto as it thinks fit.
(2) Powers of the nature referred to in sub-section (1) may also be exercised by the Joint Commissioner, the Deputy Commissioner and the Commercial Tax Officer in the case of orders passed or proceedings recorded by authorities, officers or persons subordinate to them.”
7. A reading of the above sub-sections shows that the Act merely confers a power upon certain officers of the department to call for and examine the record of any order or proceeding of a subordinate authority, without saying at whose instance such power is to be exercised. Evidently, this power can be exercised by the officer on his receiving the relevant information, which, in his opinion, calls for the exercise of power. The information, may come from any source, departmental or any other including the assessee. There are no words in these sub-sections which say that this power can be exercised only for enhancing the tax or only in the interests of Revenue. Accepting the interpretation placed by the Commissioner would amount to reading words into the sub-sections which are not there, which course is not permissible in law. In the absence of any words restricting the exercise of power at the instance of the assessee, we see no ground to hold that it is not open to an assessee to invoke the said power. This does not mean that this section confers a right of revision upon the assessee, nor does it mean that the Commissioner or other authority is bound to exercise the power, as and when it is invoked by an assessee. It is a power vested in certain authorities to ensure proper administration of the Act – which means that neither should an assessee be allowed to escape the tax due not should he be burdened with tax which is not due in law. Since the power is to be exercised suo motu, the authority can treat the revision filed by an assessee, if any, as information or as an application placing certain information and/or material for his consideration. If he thinks that such information or application calls for exercise of his power, he may exercise it; otherwise, not. All that we are saying is that while it is open to the assessee to invoke the power of revision, it does not mean that the authorities are bound to exercise that power in each case where such power is invoked by the assessee. While exercising that power, the authority may take into consideration all the relevant circumstances and decide whether the order complained against calls for interference at the instance of the assessee. In this connection, he may also well keep in mind the fact that the assessee had a right of appeal, which he did not exercise. At the same time, if good reasons are assigned or if it is a case of clear injustice, he may well ignore the failure of the assessee to avail of the right of appeal. These are all considerations which the authority has to take into account while deciding whether he should exercise the power of revision at the instance of the assessee or not. It is, however, not correct to say that merely because the right of appeal is conferred upon the assessee, he is precluded from invoking the power of revision.
8. This is also the view taken by the Supreme Court in Board of Revenue v. Raj Brothers Agencies . Considering similar provisions contained in the Madras General Sales Tax Act, viz., section 34, which also conferred upon the Board of Revenue a suo motu power to call for and examine the record of an order of the subordinate authority, the Supreme Court held that under the said provision it is open to the assessee also to bring to the notice of the Board any error made by the subordinate authorities. While holding that the said power can be exercised in the interests of Revenue, it also held that it can be invoked by the assessee as well.
9. Coming to the decisions of this Court, we find that there is a direct decision of a Bench of this Court in State of A.P., In re [1983] 54 STC 132. It is held therein that section 20 does not expressly make a provision for filing an application, much less an application by way of revision by any aggrieved party. None the less it was observed that if any application is filed, though it is not treated as an application for revising the order of an authority subordinate to the Commissioner, the Commissioner, having come to know on such application of the facts of a particular case being dealt with or disposed of by a subordinate authority, may suo motu act and exercise the power under section 20 of the Act. We are in respectful agreement with the said view. We may also mention in this behalf that there are certain observations in the decision of a Full Bench in State of A.P. v. Sri Venkata Rama Lingeshwara Rice Mill [1977] 39 STC 57 at 67, which also go to support the said conclusion of ours. The following observations, though made in a different context, are relevant :
“The position is the same when an assessee does not prefer an appeal against the order of assessment to the Appellate Assistant Commissioner, but the Deputy Commissioner chooses to exercise his powers of revision under section 20 and the assessee prefers an appeal against the order of the Deputy Commissioner, enhancing the assessment in revision. Even in such a case, the assessee, not having preferred an appeal against the order of assessment is, in our view, precluded from agitating fresh matters in an appeal before the Tribunal against the order of the Deputy Commissioner. It was submitted that as the Deputy Commissioner is entitled to enhance the assessment in a revision suo motu by him, the assessee is at a great disadvantage if he is precluded from appealing against the original assessment order in so far as it is against him, when the Deputy Commissioner has enhanced the assessment in revision. We are unable to see any force in this submission. There is nothing preventing the assessee even in a revision by the Deputy Commissioner suo motu from satisfying him that the order of the assessment in so far as it is against the assessee is wrong either wholly or in part and the Deputy Commissioner revising the assessment in favour of the assessee if he is so satisfied.
The learned counsel for the petitioners submitted that in the history of revisions suo motu by the Deputy Commissioners there would not be even a single instance where they reduce the assessment. If that were so, we express our regret that the Deputy Commissioners are using their powers of revision only for enhancing the assessment. As the Deputy Commissioners are exercising their revisional powers in a judicial capacity it is not only open to them, but it is their duty to reduce the assessment if they are satisfied that the order of assessment is to any extent illegally passed against the assessee.”
10. To the same effect, is an unreported decision of a Bench of this Court dated 12th November, 1984, in W.P. No. 5522 of 1983.
11. The learned Government Pleader for Commercial Taxes, however, brought to our notice a decision of this Court in K. Bheemalingam, In re [1967] 19 STC 116, in support of his proposition that section 20(1) of the Act does not provide for a revision at the instance of the assessee, but only provides for revision suo motu. It is, however, not necessary for us to go into the reasoning of the said decision at any length, for, the said reasoning is clearly opposed to the reasoning and principle of the decision of the Supreme Court in Board of Revenue v. Raj Brothers Agencies . It must, therefore, be held that to the extent the said decision holds that the power of revision cannot be exercised at the instance of the assessee, it is no longer goods law.
12. For the above reasons, we hold that the Commissioner was in error in holding that the Deputy Commissioner had no power to exercise his revisionary power at the instance of the assessee. The Deputy Commissioner does have such a power.
13. The Commissioner, of course, has not gone into the merits of the dispute. If he thinks that any interference is called for upon the merits of the case, it is always open to him to do so.
14. The special appeal is accordingly allowed. No costs. Advocate’s fee Rs. 250.
15. Appeal allowed.