Bombay High Court High Court

The State Of Maharashtra vs M/S.Bharat Petroleum … on 20 April, 2010

Bombay High Court
The State Of Maharashtra vs M/S.Bharat Petroleum … on 20 April, 2010
Bench: Dr. D.Y. Chandrachud, J.P. Devadhar
                                               1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           APPELLATE SIDE




                                                                                            
                         WRIT PETITION NO.4098 OF 2009




                                                                    
    The State of Maharashtra.                                 ...Petitioner.
                            Vs.
    M/s.Bharat Petroleum Corporation Ltd.& Anr.               ...Respondents.




                                                                   
                                    ....
    Mr.A.A.Kumbhakoni,   Spl.   Counsel   with  Mr.   V.A.Sonpal       for   the 
    Petitioner.
    Mr.S.P.Surte for Respondent No.1.




                                                     
    Mr.R.A. Dada, Sr.Advocate with Mr. Milind Sathe, Sr.Advocate and 
    Mr.B.C.Jshi,  Mr.  P.S.Jaitley  and  Mr.Zuber  Dada i/b.   A.S.Dagal   & 
                                    
    Asso. for Respondent No.2.
                                    .....
                                    CORAM : DR.D.Y.CHANDRACHUD AND 
                                   
                                            J.P.DEVADHAR,  JJ.

April 20, 2010.

ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :

In these proceedings under Article 226 of the

Constitution, the issue which falls for determination is whether an

appeal against an order passed by the Commissioner of Sales Tax

under Section 52 of the Bombay Sales Tax Act, 1959, is

maintainable under Section 55(1)(c), at the behest of the State

Government, to the Tribunal. The Sales Tax Tribunal has, by its

decision dated 30 June 2008 come to the conclusion that the

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appeal filed by the State was not maintainable.

2. Since the question of law which has been urged in the

Petition raises a question of interpretation, only a brief reference to

the facts would be necessary in order to appreciate the background

in which the dispute between the parties has arisen. The First

Respondent, Bharat Petroleum Corporation Ltd., entered into an

agreement on 24 August 1992 with the Second Respondent,

Reliance Industries Ltd., for the supply of Linear Alkyl Benzene

Feed Stock (LABFS) through a pipe line from the refinery at Mahul

to the petro chemical plant of the Second Respondent at

Patalganga. LABFS is raw material for the manufacture of N-

Paraffin. N-Paraffin is extracted by the Second Respondent at its

plant from the LABFS supplied by the First Respondent. Upon

extraction, the residue is returned to the First Respondent in a

‘return stream’. On 21 April 1992 the First Respondent filed an

application to the Commissioner of Sales Tax and sought a

determination under Section 52 on whether the product in

question, had been correctly classified under Entry C-I-26(1) of the

Schedule to the Bombay Sales Tax Act, 1959 and whether the

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return stream despatched by the Second Respondent to the First

Respondent constituted a “sales return”. The Commissioner of

Sales Tax by a determination dated 14 March 1996 held inter alia

that what was returned back by the Second Respondent (RIL) to

the First Respondent (BPCL) did not constitute goods returned,

but was a purchase of kerosene by the First Respondent. Evidently,

the basis of such a determination would be that what is supplied

by the First Respondent is LABFS which contains N-paraffin and

what goes back to the First Respondent does not contain the

material which is extracted by the Second Respondent at its plant.

The proceedings were eventually remanded back to the

Commissioner by an order, of a Division Bench of this Court, dated

18 February 2003 and the Commissioner was directed to decide

whether the return stream, namely, return of kerosene by RIL to

BPCL would be legally allowable as a sales return or whether it

would amount to a return of kerosene by BPCL to RIL. Upon

remand, the Commissioner by his order dated 6 October 2004

came to the conclusion that LABFS supplied by the First

Respondent to the Second Respondent and return stream were

two different goods and that consequently, what was supplied back

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did not qualify as a sales return in accordance with Rule 4 of the

Bombay Sales Tax Rules, 1959. Once again there was an order of

remand, this time by the Tribunal on 12 August 2005. Upon

remand, the Commissioner by his order dated 11 September 2006

held that the return stream, after the extraction of N-Paraffin out of

the original supply of LABFS, was legally allowable as a sales

return and would not amount to a purchase of kerosene by the

First Respondent from the Second Respondent. This order of the

Commissioner was questioned by the State Government in an

appeal before the Tribunal under Section 55 of the Act. The

Tribunal by its judgment dated 30 June 2008 came to the

conclusion that an appeal by the State against the order of the

Commissioner on a decision under Section 52 was not

maintainable. The appeal has been dismissed only on the ground

of maintainability. The State of Maharashtra has instituted these

proceedings under Article 226 of the Constitution and the

correctness of the order passed by the Tribunal now falls for

determination before the Court.

3. In assailing the order passed by the Commissioner,

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Counsel appearing on behalf of the State submitted that (i) Section

55(1)(c) is neutrally worded and provides an appeal from every

original order, not being an order mentioned in Section 56, passed

under the Act or the Rules by the Commissioner, to the Tribunal;

(ii) The Commissioner, when he makes a determination of a

disputed question under Section 52, exercises quasi judicial

powers in the exercise of which he is independent of the State and

the State exercises no control directly or indirectly on the exercise

of those powers; (iii) The observations contained in a judgment of

a Division Bench of this Court in Amar Dye Chem Ltd. vs. The

State of Maharashtra,1 are passing observations and the question

which arises in the present appeal did not arise in the reference

made to the High Court in that case under Section 61; (iv) It is a

settled principle of law that a judgment in a reference under

Section 61 is in the nature of an advisory opinion rendered on

specific questions of law which are referred for the decision of the

High Court and a question of law which was not referred to the

Court cannot be regarded as arising out of the order of reference;

(v) The scheme of the Bombay Sales Tax Act,1959 would clearly

1 (1983) 53 STC 14 (Bom)

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establish that the powers which are exercised by the Commissioner,

upon his appointment under Section 20(1) are those which are

conferred by the Act. The decision of the Commissioner is not

necessarily the decision of the State. Under Section 52, the

Commissioner discharges a quasi judicial duty imposed by the

legislation and does not perform an executive act. The decision of

the Commissioner under Section 52 is, therefore, not a decision of

the State; (vi) An appeal by the State, which has a vital interest in

the collection of revenue would be maintainable under Section

55(1)(c) against the decision of the Commissioner; (vii) The

Tribunal has manifestly erred in equating the role and position of

the Commissioner as a quasi judicial authority with the position of

the State under the Act. The basis of the judgment of the Tribunal

is hence, flawed.

4. On the other hand, it has been urged on behalf of the

First Respondent by Counsel that (i) Tax legislation contemplates

a distinction between statutory provisions relating to the charge of

tax and those relating to assessment, remedies and recovery of

revenue; (ii) The assessment of tax under Sales Tax legislation is

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done by the Commissioner or by his subordinates. The

Commissioner protects the interests of the revenue and of the State

and he has no independent interest of his own; (iii) Powers of

reassessment, revision and of imposing penalties, amongst others,

are vested in the Commissioner; (iv) Under the Act the

Commissioner is a representative of the Government, the object

being to protect the interests of the State; (v) If the logic of the

State Government that it can file an appeal against an order passed

by the Commissioner under Section 52 to the Tribunal is held to be

correct, that would mean that an appeal can be filed by the State

against an order passed by the Sales Tax Officer. Sufficient

powers have been given to the Commissioner to make a

reassessment or to exercise revisional jurisdiction under the Act;

(vi) The State has no independent interest except to ensure that the

provisions of the Act are implemented and that tax is properly

collected. The Commissioner is expected to protect the interests of

the State; (vii) The provisions of the Act, must result in the

inference that even if Section 55 is facially neutral, an appeal by

the State Government against an order of the Commissioner is not

contemplated; (viii) The interpretation which is sought to be

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placed on the provisions of the Act is buttressed by relying on the

provisions of the Rules and forms prescribed for the filing of an

appeal.

5. The publication of the Government of Maharashtra

suffers from a printing error in Section 55(1)(c). As would be

noted in greater detail later, Section 55(1)(c) provides that an

appeal from every original order, not being an order as set out in

Section 56, shall lie “if the order is made by the Deputy

Commissioner, Additional Commissioner or Commissioner to the

Tribunal”. The Bombay Government Gazette of 28 September

1959 in which the Act has been initially published, specifically

makes the aforesaid provision which contemplates an appeal

against the decision of the Commissioner to the Tribunal. The

same provision continued in subsequent publications of the State

Government, there being no amendment to Section 55(1)(c), in so

far as it provides for an appeal against an original order of the

Commissioner to the Tribunal. The deletion of the words “or

Commissioner” in the version of the Act published by the State

Government is, therefore, an obvious printing error. The Petition

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has been argued by all the Counsel on that basis, upon verification

that this is a printing error and that the aforesaid provision has not

been altered by the legislature.

6. The salient provisions of the Act and the statutory

scheme must be elucidated. Section 2(7) defines the expression

“Commissioner” to mean the person appointed to be the

Commissioner of Sales Tax for the purposes of the Act. Clause (11)

of section 2 defines the expression “dealer” to mean any person

who whether for commission, remuneration or otherwise carries on

the business of buying or selling goods in the State, and includes

the Central Government, or any State Government which carries on

such business, and also any society, club or other association of

persons which buys goods from or sells goods to, its members.

The expression “State” is defined in clause (31) of Section 2 to

mean the State of Maharashtra. The incidence and levy of tax is

provided in Chapter II and under Section 3(1) a dealer whose

turnover either of all sales or of all purchases exceeds the limit

prescribed is liable to pay tax under the Act on his turnover of sales

and turnover of purchases made on or after the notified day.

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Chapter III provides for the constitution of sales tax authorities and

the Tribunal. Sub-section (1) of Section 20 provides that for

carrying out the purposes of the Act, the State Government shall

appoint an officer to be called the Commissioner of Sales Tax.

Under Sub-section (2) the State Government is similarly vested

with the power to appoint Additional Commissioners of Sales Tax

and other subordinate officers. By Sub-section (3) of Section 20,

the Commissioner has jurisdiction over the whole of the State of

Maharashtra, while an Additional Commissioner has also

jurisdiction over the whole of the State or, where the State

Government so directs, over any local area thereof. The

jurisdiction of the other officers is over such local areas as the State

Government may specify. Sub-section (4) of Section 20 provides

that the Commissioner shall have and exercise all the powers and

perform all the duties, conferred or imposed on the Commissioner

by or under the Act. An Additional Commissioner save as

otherwise directed by the State Government, can exercise the

jurisdiction conferred upon the Commissioner. By sub-section (7)

the State Government is empowered to delegate to the

Commissioner the powers conferred upon it by sub-sections (2)

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and (3), other than for the appointment of Additional

Commissioners or Deputy Commissioners. The constitution of the

Tribunal is provided for in Section 20.

7. Chapter IV of the Act deals with registrations, licences,

authorizations, recognitions and permits. In several provisions of

the Act, powers have been vested in the Commissioner of Sales

Tax. These include inter alia the power to refuse an authorization

(Section 27); and to cancel or suspend an authorization (Section

28). Chapter V of the Act provides for returns, assessment,

payment, penalty, recovery and refund of tax. The Commissioner

is conferred with the power to make an assessment of taxes under

Section 33. In certain situations, the Commissioner is empowered

to issue directions not to proceed with the assessment of a

particular dealer or class of dealers for a particular period if the

assessment involves a decision of a point which is concluded

against the State by a judgment of the Tribunal or the High Court

and the State Government or the Commissioner have initiated

proceedings against such a judgment before an appropriate forum.

The power to reassess, where there is reason to believe that any

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turnover of sales or purchases has escaped assessment is vested in

the Commissioner under Section 35. The Commissioner is

empowered to impose a penalty for the contravention of Section 37

and to issue orders in the nature of garnishee orders under Section

39.

8. In this background now it is necessary to advert to the

provisions of Section 52. Sub-section (1) of Section 52 empowers

the Commissioner to determine a question which arises, otherwise

than in proceedings before a Court or before the Commissioner has

commenced assessment or reassessment of a dealer under Section

33 or 35, whether, for the purposes of the Act:

“(a) any person, society, club or association or any firm
or any branch or department of any firm, is a dealer, or

(b) any particular thing done to any goods amounts to or

results in the manufacture of goods, within the meaning
of that term, or

(c) any transaction is a sale or purchase, or where it is a

sale or purchase the sale price or the purchase price, as
the case may be, therefor, or

(d) any particular dealer is required to be registered, or

(e) in the case of any person or dealer liable to pay tax,
any tax is payable by such person or dealer in respect of
any particular sale or purchase, or if tax is payable the
rate thereof.”

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In discharging the functions conferred by or under the Act, the

Commissioner under Section 53 has all the powers of a Civil Court

for the purpose of (a) Proof of facts by affidavit; (b) Summoning

and enforcing the attendance of any person, and examining him on

oath or affirmation; (c) Compelling the production of documents;

and (d) Issuing commissions for the examination of witnesses.

Section 55 of the Act provides for appeals and reads as follows:

“55. (1) An appeal from every original order, not being

an order mentioned in section 56 passed under this Act
or the rules made thereunder shall lie-

(a) if the order is made by a Sales Tax Officer, or any

other officer subordinate thereto, to the Assistant
Commissioner;

(b) if the order is made by an Assistant Commissioner, to
the Deputy Commissioner;

(c) if the order is made by a Deputy Commissioner,
additional Commissioner or Commissioner to the
Tribunal.”

Sub-section (3) of Section 55 provides that every order passed in

appeal under the Section shall, subject to the provisions of Sections

57, 61 and 62 be final. Sub-section (4) provides a limitation of

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sixty days from the date of the communication of the order

appealed against for the filing of an appeal. Section 59 provides

that in computing the period of limitation, the provisions of

Sections 4 and 12 of the Limitation Act, 1963 shall, so far as may

be, apply. Sub-section (5) of Section 55 inter alia provides that an

appeal against an order of assessment with or without penalty, or

interest or against an order imposing a penalty, or interest, or

against an order directing the forfeiture of any tax collected by a

dealer, shall not ordinarily be entertained by an appellate

authority, unless it is accompanied by satisfactory proof of the

payment of the tax with or without penalty, or interest, or as the

case may be, of the payment of the penalty, or interest, or the

amount forfeited. The Appellate Authority is permitted to waive

this requirement for reasons to be recorded in writing. Under sub-

section (6), the Appellate Authority both in first and second

appeals has the power (a) In an appeal against an order of

assessment to confirm, reduce, enhance or annul the assessment,

or set it aside and refer the case back to the assessing authority for

making a fresh assessment; (b) In an appeal against an order of

imposing a penalty or interest to confirm, cancel or vary the order

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so as to enhance or reduce the penalty or interest; and (c) in any

other case to pass such orders in the appeal as it deems just and

necessary. Certain orders are made non-appealable under Section

56. These orders include a notice issued under the Act calling

upon a dealer for an assessment or to show cause against

prosecution, orders pertaining to the seizure or retention of

documents, orders sanctioning prosecution and other orders as

specifically provided. Section 56 provides as follows :

“56. No appeal and no application for revision shall lie

against-

-(1) a notice issued under this Act, calling upon a dealer
for assessment or asking a dealer to show cause as to

why he should not be prosecuted for an offence under
this act, or notices issued under any of the provision of

section 38B of this act, or notice or any order issued
under the provisions of section 39-1A or

-(1A) Orders issued by the Commissioner under the
third proviso to sub-section (4A) of section 33, or

-(2) an order pertaining to the seizure or retention of
account books, registers and other documents, or

-(2A) any order issued under sub-section(1) of section
53
, or

-(3) an order sanctioning a prosecution under this act, or

-(4) an order ……… under section 70.”

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9. Section 57 of the Act empowers the Commissioner,

subject to Section 56, to call for and examine the record of his own

motion, or any order passed (including an order passed in appeal)

under the Act or the rules by any officer or person subordinate to

him and to pass such orders thereon as he thinks just and proper.

Prior to its amendment by Maharashtra Act 24 of 1990, Section 57

inter alia contemplated a revision to the Tribunal on an application

made to it against an order of the Commissioner, not being an

order passed under Section 55(2), in second appeal. The State

Legislature amended the provision in 1990 so as to delete the

remedy of a revision against an order passed by the Commissioner

to the Tribunal that was available under clause (b) of Sub-section

(1) of Section 57.

-10. In Section 55, the legislature has made a provision for an

appeal against original orders passed by the various authorities.

An appeal against an order of the Sales Tax Officer lies to the

Assistant Commissioner; an appeal against an order of the Assistant

Commissioner lies to the Deputy Commissioner and an appeal

against an order passed by the Deputy Commissioner, Additional

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Commissioner or Commissioner lies to the Tribunal. Sub-section

(1) of Section 55 provides that an appeal from every original order,

not being an order mentioned in Section 56 passed under the Act

or the rules, would lie if an order is made by one of the authorities

stipulated therein to the appellate authorities as specified. The

appellate authority against an original order passed by the

Commissioner is the Tribunal. The mandate of the law is that an

appeal lies against every original order passed under the Act or

rules which is made by one of the authorities specified. The

exception is that certain orders specified in Section 56 are non-

appealable.

-11. The submission which has been urged on behalf of the

Respondents is that though Section 55(1) is neutrally worded, the

scheme of the Act would result in the conclusion that the State

Government cannot be aggrieved by an order passed by the

Commissioner so as to maintain an appeal under Section 55(1).

The submission which has been urged is that the Commissioner is

appointed with the intent and purpose of protecting the revenue

concern of the State Government and in numerous provisions of

the Act, it is the Commissioner who discharges the role of being the

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protector of the revenue. Hence, it has been urged that the State

cannot maintain an appeal against an order passed by the

Commissioner.

12. Reading Section 55 as it stands, the provision does not

contain a restriction of the nature sought to be inferred on behalf

of the Respondents. Section 55 provides for an appeal from every

original order except for those orders mentioned in Section 56. An

original order under Section 52 is not mentioned in Section 56.

On its plain and natural meaning, an appeal against an original

order passed under Section 52 is maintainable under Section 55.

In construing the provisions of a fiscal statute, the Court must

adopt the ordinary and natural meaning of the words used by the

legislature, for the legislature is deemed to intend and mean what

it says. Where the language of a statute is clear and unambiguous,

the Court cannot read a restriction which has not been introduced

by the legislature. The intention of the legislature has to be

construed from the words used and by the language adopted. The

words that have been used in Section 55 are not susceptible to the

interpretation that the appellate remedy is available only to the

assessee.

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12. The fallacy in the submission of the Respondents, which

found acceptance by the Tribunal, lies in equating the exercise of

the quasi judicial powers by the Commissioner, with the exercise of

powers by the State. Undoubtedly, under Section 20(1), the State

Government appoints the Commissioner of Sales Tax for carrying

out the purpose of the Act. The Commissioner is vested with the

exercise of all the powers and with the performance of the duties

conferred by the Act. In these proceedings, the issue before the

Court relates to the exercise of powers by the Commissioner while

deciding a disputed question under Section 52. The power which

the Commissioner exercises to decide such a question is a quasi

judicial power. Section 52 is a part of Chapter VII which is

entitled “Proceedings”. The nature of the determination under

Section 52 is quasi judicial. Section 53 which immediately follows

Section 52, specifically confers upon the Commissioner, the powers

of a Civil Court though in certain specific areas for proof of facts by

affidavit, summoning and enforcing the attendance of any person,

compelling the production of documents and for issuing

commissions for the examination of witnesses. In the discharge of

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his quasi judicial powers, the Commissioner is required to apply his

mind independently and is not subservient to the State. The

exercise of quasi judicial power by the Commissioner cannot be

subject to the dictate or to the directions of the State. Though the

Commissioner is vested with statutory powers under the Act and

his appointment is with a view to carry out the purposes of the Act,

when he exercises quasi judicial powers, the exercise of those

powers is subject to the discipline of the law which attaches to the

discharge of a quasi judicial power. A determination by the

Commissioner under Section 52 is an original order within the

meaning of sub-section (1) of Section 55. To hold that an appeal

at the behest of the State would not be maintainable against such

determination, is liable to produce startling results. The

submission of the Respondents is that even if the Commissioner

were to err in the discharge of his quasi judicial powers under

Section 52, the statute does not provide a remedy for its

correction, save and except for a review which can be exercised by

the Commissioner. This would be destructive of the legitimate

concerns of the State in the collection of Revenue. Clear words

would be necessary to produce such a result. The legislature has

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not imposed such a prohibition. The Tribunal dealt with the issue

by holding that it was for the State Government to take steps to

bring about an amendment by legislation. The provision as it

stands, is not susceptible of being interpreted in such a manner as

would exclude an appeal by the State against an order passed by

the Commissioner under Section 52. Section 55(1) does not

contain any such restriction. A restriction of that nature could only

be by express words used by the legislature or if as a result of a

necessary implication drawn from the statutory provision only one

possible conclusion could be arrived at. That is not so in the

present case.

13. In Amar Dye Chem Ltd. vs. State of Maharashtra, 2 a

Division Bench of this Court considered four questions on a

reference by the Tribunal, at the instance of the assessee, under

Section 61(1). The questions which were referred for the

determination of the Court were as follows :

“(1) Whether, on the facts and in the circumstances of
the case and considering the dates of filing of returns,
assessment order and filing of the first appeal, all prior to
1971, the Tribunal was right in holding that the Assistant

2 (1983) 53 STC 14 (Bom)

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Commissioner of Sales Tax did have power of enhancing
the quantum of purchases from Rs.3,52,597 to Rs.

7,69,246 while deciding the appeal?

(2) Whether, on the facts and in the circumstances of the
case, the Tribunal was right in holding that the Assistant

Commissioner of Sales Tax possessed jurisdiction of
enhancing the rate of purchase tax from 3 per cent to 5
per cent taking recourse to sub-section (2A) of section 14
of the Bombay Sales Tax Act, 1959, as substituted and

always deemed to have been substituted by Maharashtra
Act 13 of 1973)?

(3) On the facts and circumstances of the case and
regard being had to 67 per cent of local sales as against
purchases on form 15 only of 45 per cent, was the
Tribunal justified in law in holding that the applicant

made breach of recitals of form 15 and thereby was
liable to purchase tax under section 14 of the Bombay

Sales Tax act, 1959?

(4) On the facts and circumstances of the case and
regard being had to overall purchases made within and
without the State of Maharashtra, was the Tribunal
justified in law in holding that the applicant was not

entitled to the full set-off of Rs.1,26,634?”

The first question related to the power of the Assistant

Commissioner to enhance the quantum of purchases which had

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become exigible to purchase tax under Section 14, while the

second question related to his jurisdiction to enhance the rate of

purchase tax on such purchases. Sub-section (6) of Section 55 as it

originally stood, provided that an Appellate Authority may pass

such orders on appeal as it deems just and proper, subject to such

rules and procedure as may be prescribed. As a result of

Maharashtra Act 42 of 1971, sub-section (6) was substituted so as

to inter alia provide that in an appeal against an order of

assessment, the Appellate Authority may confirm, reduce, enhance

or annul the assessment. The Division Bench held that under the

new sub-section (6) of Section 55, the appellate authority became

clothed with a wider power and jurisdiction than under the old

sub-section (6). The assessee had not filed the appeal after the

amended sub-section (6) came into force and the appeal was

required to be decided according to the provisions of the old sub-

section (6). The Division Bench held that the only question that

remained for determination was whether the order of the Appellate

Commissioner was one which he was competent to pass under the

old sub-section (6). The Division Bench held that the order of

Assistant Commissioner in appeal was under the unamended sub-

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section (6) of Section 55 and that in view of the questions arising

in the appeal filed by the assessee, he had the power to enhance

the quantum of purchases. The rate of sales tax could be enhanced

by reason of the retrospective operation of Section 14(2A) of the

Bombay Sales Tax (Amendment and Validating Provisions) Act,

1973.

14.

During the course of the judgment in Amar Dye Chem,

the Division Bench compared the provisions of the Bombay Sales

Tax Act, 1959, with the Income Tax act, 1961. The Division Bench

held that under the Income Tax Act, against an order passed in

appeal by the Assistant Commissioner, both the assessee and the

Department could approach the Appellate Tribunal but there was

no such provision under the Sales Tax Legislation, and an appeal

could be available only to the assessee.

15. Now, it is a settled principle of law that a decision

rendered by the High Court on a reference is in an advisory

capacity and that the Court can decide only questions which are

referred to it and not any other question. This principle was

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reiterated in the context of the provisions of sub-sections (1) and

(2) Section 66 of the Income Tax Act, 1922 in the decision of the

Supreme Court in CIT vs. Scindia Steam Navigation Co. Ltd.3

The Supreme Court held that the High Court hearing a reference

under Section 66(1) does not exercise appellate, revisional or

supervisory jurisdiction over the Tribunal. The Court acts purely in

an advisory capacity, on a reference which properly comes before it

under sub-sections (1) and (2) of Section 66. The Supreme Court

held that it is of the essence of such a jurisdiction that the Court

can decide only questions which are referred to it and not any

other questions. The same principle has been reiterated by the

Supreme Court in its judgments in Aluminium Corporation of

India Ltd. vs. CIT,4 and in CIT vs. Bansi Dhar & Sons.5 In the

circumstances, following the settled position in law, the ratio of

the judgment of the Division Bench in Amar Dye Chem must be

confined to the questions of law on which a reference was made to

the Court. The issue as to whether an appeal against an order

passed by the Commissioner would be maintainable before the

Tribunal under Section 55(1)(c) was not referred to this Court
3 (1961) Vol.XLII ITR 589
4 86 ITR 11 (1972)
5 (1986) 157 ITR 665

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under Section 61. Consequently, the observations of the Division

Bench on that issue cannot be regarded as arising out of the order

passed on the reference.

16. Counsel appearing on behalf of the Respondents relied

upon the judgment of a Division Bench of this Court in Kulko

Engineering Works Ltd. vs. The State of Maharashtra.6 In that

case the submission which was urged on behalf of the Revenue

was that the decision of the Commissioner under Section 52(1)

has no binding effect and the Sales Tax Officer is not bound by it.

While rejecting this argument, the Division Bench held that the Act

provides for a hierarchy of authorities; some of them possess

original jurisdiction, some appellate or revisional jurisdiction or

both. This Court observed that the hierarchy of authorities under

the Act is provided in order to have a superior authority to correct

wrong orders or to provide a remedy by way of appeal and revision

to a party aggrieved by an order. If a question submitted to the

Commissioner for determination under Section 52 has been

determined by him upon an interpretation of the provisions of the

6 (1980) 46 STC 454

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27

Act or Rules, it would not be open to a Sales Tax Officer to ignore

that interpretation and to place his own interpretation contrary to

or different from the interpretation which has been placed by the

Commissioner. The judgment of the Division Bench, therefore,

does not decide the issue as to whether a determination under

Section 52 would be subject to an appeal under Section 55 by the

State. Similarly, the decision of the Supreme Court in

Commissioner of Sales Tax vs. Indra Industries,7 reiterated the

position in law that a circular issued by the Department would be

binding on the Department and the taxing authority cannot be

heard to advance an argument that is contrary to that

interpretation.

17. The order which has been passed by the Tribunal is

manifestly misconceived and would warrant interference of this

Court in its extraordinary jurisdiction under Article 226 of the

Constitution. The basic postulate of the decision of the Tribunal is

that orders which are passed by the Commissioner are in exercise

of powers which are delegated to him by the government and that

7 (2001) 122 STC 100

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the Commissioner acts as a representative or agent of the

Government. This assumption is incorrect. The Commissioner who

is vested with a quasi judicial authority under Section 52 cannot

be regarded as being a representative or agent of the State

Government when he decides an issue under that provision. The

Tribunal was, with respect, in manifest error when it held that a

legal injury cannot be said to be sustained by the State

Government, nor can the State Government be regarded as an

aggrieved person qua the order passed by the Commissioner who is

a representative of the State. The State is vitally interested in the

collection of revenue. An error on the part of the Commissioner in

the exercise of his quasi judicial powers is subject to correction by

the Tribunal in an appeal filed by the State. To hold otherwise

would result in a manifest miscarriage of justice and would defeat

the very basis and intent of the legislature in enacting the

legislation. The State which has a vital interest in securing the

collection of revenue is entitled to file an appeal against an order

passed by the Commissioner where that order is regarded as being

contrary to law.

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18. Before concluding, it would be necessary to note that

the Tribunal has dismissed the appeal only on the ground of

maintainability. The Tribunal has not decided any other question

including the question of limitation. That being the position, it

would not be either appropriate or proper to express any view on

the questions which would arise before the Tribunal including on

the question of limitation. All these questions are kept open to be

urged before and to be decided by the Tribunal.

19. In the circumstances, Rule is made absolute by setting

aside the order of the Tribunal dated 30 June 2008. The appeal

shall in the circumstances, be restored back to the file of the

Tribunal to be disposed of in terms of the aforesaid directions. In

the circumstances of the case, there shall be no order as to costs.

( Dr.D.Y.Chandrachud, J.)

( J.P.Devadhar, J.)

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