JUDGMENT
P.N. Kirpal, J.
(1) The challenge in this writ petition is to the order of assessment which is passed by the respondents under the Central Sales Tax Act seeking to tax certain turn over of the petitioner in respect of the assessment year 1974-75.
(2) Briefly stated, the facts are that .the petitioner, in the year relevant to the assessment year 1974-75, had been exporting goods from India to User through the State Trading Corporation. The Value of the goods so exported during that year came to Rs. 9,11,500.00 .
(3) The petitioner filed its sales tax returns under the provisions of the Delhi Sales Tax Act, under the local act and also under the Central Sales Tax Act. Two orders were passed on 10th April, 1978. The aforesaid sales, which according to the petitioner-herein were in the course of export, were sought to be taxed under the local Act. Under the Central Sales Tax Act another order dated 10th April, 1978 was passed. As per the said order there was no tax payable under the Central Sales Tax Act.
(4) The petitioner filed one appeal against the assessment order pertaining to the local tax. By order dated 16th September, 1982 the Assistant Commissioner observed that the aforesaid turn over was taxable under the provisions of the Central Sales Tax Act, and not under the local Act. He further observed that the orders under the Central Sales Tax Act needed revision by the competent authority.
(5) No action was taken by the Sales Tax Authorities pursuant to the aforesaid order dated 16th September, 1982 to revise the assessment order dated 10th April, 1978 under the Central Sales Tax Act. An appeal was, however, preferred against the said order dated 16th September. 1982 and I am informed that the appellate authority has affirmed the order of the Assistant Commissioner though a reference is now pending.
(6) The Sales Tax Officer then passed the impugned order dated 12th September, 1986 under section 9 of the Central Sales Tax Act read with Section 23 of the Delhi Sales Tax Act. The said order was passed by treating the case as one which had been remanded to him. This is so stated in the assessment order itself. Presuming that the case had been remanded to the Sales Tax Officer, he, following the decision, dated 16th September, 1982 of the Assistant Commissioner, assessed the petitioner to tax under the provisions of the Central Sales Tax Act and has raised the impugned demand of Rs. 91,150.00 . It is this demand which is now sought to be impugned in these proceedings under Article 226 of the Constitution of India.
(7) Ordinarily this Court .would not have interfered in proceedings under Article 226 of the Constitution because an alternative remedy was available to the petitioner. This, however, is a case where, as would be evident, the assessing authority has assumed jurisdiction where he had none.
(8) The contention of the petitioner is that the original assessment order under the Central Sales Tax Act having become final on 10th April, 1978, the assessing authority could not pass the impugned order dated 18th September, 1986 by treating this as a remand case. Learned counsel for the respondents, however, submitted that the proceedings were still alive and the assessing authority had the jurisdiction to pass the impugned order either by virtue of the provisions of section 46 of the Delhi Sales Tax Act or section 48(6) of the said Act.
(9) The proceedings under the Delhi Sales Tax Act and under the Central Sales Tax Act are independent of each other. Separate returns have to be filed under the two Acts and separate assessment orders are passed. It is true that in some cases orders may be inter-related, inter-linked or interconnected because a controversy may arise as to whether a particular type of sale is taxable under the local Act or Central Sales Tax Act. Nevertheless, the two proceedings are independent of each other though the procedure for imposing tax under the Central Sales Tax Act .which has to be followed is one which is provided by the local Act. In the present case, two separate assessment orders were passed on 10th April, 1978. The order under the Central Sales Tax Act was not subject to any further appeal. That became final, It is only the order under the local Act which was taken up in appeal and the appellate authority had occasion to consider the question as to what was the taxable turn over of the petitioner under the local Act. The Assistant Commissioner was right in his observations made in the order dated 16th September, 1982 that the competent authority should take proceedings to revise the order under the Central Sales Tax Act. At that time action could have been taken under section 46 of the Act. Under section 46 an order of assessment can be revised by the Commissioner or, any other authority duly authorised to do so within five years of the passing of the assessment order. On 16th September, 1982 this period of limitation had not expired.
(10) It is unfortunate that the department took no action under section 46 pursuant to the order of the Assistant Commissioner in the appeal arising out of the assessment order under the local Act. Learned counsel for the respondents cannot rely on section 46 in the present case because, as already mentioned hereinabove, the period for taking action under that Act came to an end on 10th April, 1983. The impugned order in the present case had been passed more than three years thereafter.
(11) This is also not a case which could be regarded as having been remanded by the appellate authority. The appellate authority was not seized of any appeal arising under the Central Act. It was dealing with appeal under the provisions of the local Act. If any direction had been issued with regard to the taxability of some items under the local Act then, possibly, a fresh order could be passed in furtherance of the directions issued. If dealing with an appeal under the local Act observations are made or directions are issued with regard to taxability of items under the Central Sales Tax Act, then proceedings cannot be initiated under Central Sales Tax Act by treating it as a case having been remanded to it under the Central Sales Tax Act.
(12) Section 48(6) does not apply to this case because, as is evident from the reading thereof, it is concerned with review of an order which is passed by such an authority. It is indeed surprising that the provision does not expressly contain any period of limitation within which such an order can be passed. According to Mr. Sangal the period of limitation is the one which is prescribed under section 48(1) whereas Mr. Mittal submits that there is no period of limitation within which this power can be exercised. It is not necessary for me to decide this issue and I will proceed on the assumption that there is no period of limitation.
(13) The powers which are contained under section 48(6) are not powers to reopen an earlier assessment which has become final nor is it a power to rectify an earlier order, which power is given by section 48(1) and (2) nor is it a power of revision which is contained in section 46. The power under section 48(6) is a power of review simpliciter. If, therefore, there was an error apparent on the face of the order dated 10th April, 1978, then the power of review may have been exercised but in the present case there was no such error apparent on the face of the said order. No action could, therefore, be taken, in the present case, under section 48(6) and in fact the assessing authority has not purported to act under the said provision.
(14) For the aforesaid reasons, the writ petition is allowed. The assessment order dated 12th September, 1986 in quashed. In the peculiar circumstances of the case, there will be no order as to costs.