JUDGMENT
Aggarwal, J.
(1) By this petition, under Article 226 of the Constitution of India, the petitioner Pratap Steel Rolling Mills Ltd. has challenged the legality and vires of the notice dated 22nd August, 1986 issued by the Commissioner of Sales Tax, Delhi, requiring the petitioner to show cause as to why the order of the Additional Commissioner of Sales Tax dated 28th November, 1983 be not suo moto revised under section 46 of the Delhi Sales Tax Act, 1975 (hereinafter for the sake of brevity called ‘the Act’).
(2) The petitioner is a company registered under the Companies Act, 1956 and it has its registered office at A-4, Kalindi, New Delhi. The petitioner is registered with the respondents as a registered dealer. The petitioner deals in the manufacture and sale of various goods enumerated in section 14(4) of the Central Sales Tax Act. 1956 under the expression ‘iron and steel. The Assessing Authority for the years 1978-79, 1979-80 and 1980-81 raised demands against the petitioner in the amounts of Rs. 3,12,668, Rs. 3,98,140 and Rs. 4.76,652, respectively. These demands include the interest levied by the Assessing Authority under section 27(1) of the Act.
(3) Against the aforesaid orders, the petitioner filed appeals before the Additional Commissioner of Sales Tax. The Additional Commissioner of Sales Tax allowed the appeals and granted certain reliefs to the petitioner. It is this order of the Additional Commissioner of Sales Tax which is sought to be revised suo moto by the Commissioner by the impugned notice.
(4) Section 9 of the Delhi Sales Tax Act deals with the appointment of sales tax authorities. Section 9 reads as follows :
“9.SALES Tax AUTHORITIES-(1) For carrying out the purposes of this Act, the Administrator shall appoint a person to be the Commissioner of Sales Tax.
(2)To assist the Commissioner in the execution of his functions under this Act, the Administrator may appoint as many additional Commissioners of Sales Tax, Sales Tax Officers and such other persons with such designations as the Administrator things necessary.
(3)The Commissioner shall have jurisdiction over the whole of Delhi and the other persons appointed under sub-section (2) shall have jurisdiction over such areas as the Commissioner may specify.
(4)The Commissioner and other persons appointed under sub-section (2) shall exercise such powers as may be conferred, and perform such duties as may be required, by or under this Act.”
(5) Section 13 provides for the appointment of appellate Tribunal. Section 43 deals with appeals and sub-sections (1) arid (2) of section 43 with which we are concerned read as follows :
“43.APPEALS.-(1) Any person aggrieved by any order, not being an order mentioned in section 44 passed under this Act or the rules made there under, may appeal to the prescribed authority :
PROVIDED that where an order, not being an order mentioned in section 44 or made under section 47 is passed by the Commissioner, the person aggrieved may appeal there from to the Appellate Tribunal.
(2)The Commissioner or any person aggrieved by an order passed in appeal by the prescribed authority may appeal to the Appellate Tribunal against such order.”
(6) Section 44 enumerates the orders which are not appealable. Section 45 deals with the statement of case to the High Court. Section 46 gives power to the Commissioner to revise the orders prejudicial to revenue. This section is important and it reads as under :
“46.REVISION Of Orders Prejudicial To REVENUE.-The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by any person appointed under sub-section (2) of section 9 to assist him is erroneous in so far as it is prejudicial to the interests of revenue, he may, after giving the dealer an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment and penalty (if any) imposed or cancelling the assessment and penalty (if any) imposed arid directing a fresh assessment.
PROVIDED that a final order under this section shall be made before the expiry of five years from the date of the order sought to be revised.”
(7) Section 47 gives power of revision against orders except the orders referred to in section 44 or to which section 46 applies. Rule 35 of the Delhi Sales Tax Rules provides that an appeal under sub-section (1) of section 43 shall lie to the Commissioner or other officers not below the rank of an assistant Commissioner.
(8) Shri S. T. Desai, learned counsel for the petitioner, contended that the Commissioner has no jurisdiction to revise the order of the Additional Commissioner under section 46 of the Sales Tax Act, inter-alia, on the grounds (i) that under sub-section (2) of section 43 it was the Commissioner who could have appealed against the order of the Additional Commissioner to the Appellate Tribunal and he not having exercised that right he cannot revise the order of the Additional Commissioner under section 46 of the Act, and (ii) that section 43(1) confers the right on a person aggrieved by any order to appeal to the prescribed authority and rule 35 prescribes the authorities to which the appeal shall lie and that the Additional Commissioner exercises the power of appellate authority under rule 35 and. therefore the Additional Commissioner as the appellate authority could not be said to be an authority appointed under section 9(2) to assist the Commissioner within the meaning of the expression “appointed under sub-section (2) of section 9 to assist him” employed in section 46.
(9) The counsel in support of his contention has relied on Commissioner of Sales Tax, Madhya Pradesh, Indore, v. Shri Amarjeet Singh, (1963) 14 Sales Tax Cases 501 (1) wherein a Bench of the Madhya Pradesh High Court held as under :
“THE power to hear an appeal is referable to the rules framed under section 22(1) and therefore an appellate authority hears an appeal qua his powers there under and not by virtue of his appointment under section 3, though he may happen to be a person appointed there under. That being so, the appellate authority is in that capacity not within the expression “any person appointed under section 3 to assist him” in section 22-B.”
WE are unable to agree in the contentions of Shri Desai.
(10) The Additional Commissioner, Sales Tax Officers and other authorities appointed under section 9 are the creatures of the statute. Section 43 provides for appeal and it states that the appeal shall lie to the prescribed authority. Section 71 empowers the Administrator to frame rules for carrying out the purposes of the Act. Sub-rule 2(n) of section 71 with which we are concerned reads as under : “(N)the form and manner in which, and the authority to whom, appeals against assessment may be filed under section 43, the manner in which such appeals shall be verified and the fees payable in respect thereof and the procedure to be followed by such authority.”
(11) Rule 35 has been framed under the aforesaid powers and it names the authority to which appeal shall lie under section 43. Section 9(2) states that the Administrator shall appoint & Commissioner and to assist the Commissioner in the execution of his functions under the Act the Administrator may appoint as many Additional Commissioners of Sales Tax, Sales Tax Officers and such other persons with such designations as he may think necessary. The scheme of the Act clearly is that the Commissioner is to head the Sales Tax department and the Additional Commissioner of Sales Tax and other officers ap- pointed under section 9(2) are to assist him in the execution of his functions. Section 43(1) gives the right of appeal and also provides that the appeal shall lie to the prescribed authority. Rule 35 prescribes that an appeal under sub-section (1) of section 43 shall lie to the Commissioner or other officers not below the rank of an Assistant Commissioner. The Commissioner is clearly the over-all in-charge of the entire set up under the Sales Tax Act. Sections 46 and 47 confer upon the Commissioner the powers of revision against the order passed by the authorities appointed under section 9(2) of the Act to assist him.
(12) We are unable to see how the Additional Commissioner while exercising the appellate power could be said to be an authority “not appointed under section 9(2) to assist the Commissioner. The Additional Commissioner is appointed by the Administrator under section 9(2) to assist the Commissioner in the execution of his function’s. Rule 35 derives its force from the Act. The conferment of appellate powers on the Additional Commissioner under rule 35 is not independent of the Act. The main source is the Act.”
(13) Section 46 confers powers of revision on the Commissioner and it enables the Commissioner to call for and examine the record of any order passed, including the one passed in appeal, by any person appointed under section 9(2) of the Act to assist him, subject to the limitation provided in the section. Thus, any order including an order passed in appeal by an authority appointed under section 9(2) of the Act can be examined by the Commissioner under the powers conferred on him under section 46 and he can modify or vary the order as the circumstances of the case may justify.
(14) We find that the Kamataka Sales Tax Act, 1957 has a provision (section 22-A) similar to section 46 of the Act. The said section came up for interpretation before a Full Bench of the Kamataka High Court in the case Mohamed Samiullah v. Commissioner of Commercial Taxes (1986) 61 Sales Tax Cases 107(7) Mr. Justice Puttaswamy speaking for the Full Bench held as under :
“AN”appellate authority” under the Act cannot exist without an officer holding that post. The officer holding the post of an appellate authority cannot be treated as different from the appellate authority itself. If the officer is subordinate, then that officer holding the post, whether it be appellate or original, must necessarily be subordinate to the Commissioner. In that context, the appellate authority has to be interpreted as the officer holding the post of an appellate authority under the Act, as subordinate to the Commissioner. Therefore, no distinction can be made between the officer holding the post, the post, or the appellate authority.
THE provision for an appeal by the revenue before the Tribunal is independent of the exclusive power conferred in the Commissioner by section 22-A of the Act. The provision for an appeal by the revenue cannot also be read as restricting the power of the Commissioner conferred by section 22-A of the Act. Every one of the amendments made by the Karnataka Sales Tax (Amendment) Act, 1963, in particular, the introduction of section 22-A in the place of section 21(2) of the Act, did not provide for curtailing the exclusive and special power of revision conferred on the Commissioner. The power conferred by section 22-A is in no way controlled by the provisions made for an appeal by the revenue.”
(15) For the reasons stated we see no illegality or want of jurisdiction in the impugned notice. The petition is without merit and is dismissed.
(16) This order shall also govern civil writs No. 2549186. 2550)86 and 2551186 as they raise identical questions of fact and law.