ORDER
Dipak Misra, J.
1. Both the writ petitions being interlinked were heard analogously and are disposed of by this common order. For the sake of clarity and convenience the facts stated in W.P. No. 5397 of 1998 are adumbrated herein.
2. The petitioner is a registered dealer under the M.P. General Sales Tax Act. The M.P. General Sales Tax Act was repealed in the year, 1994 and new Act, i.e., Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (hereinafter referred to as “the Adhiniyam”) came into force on April 1, 1995. It is averred in the writ petition that as per the provisions of the new Act Commissioner of Commercial Tax, Madhya Pradesh has been empowered to make assessment in respect of an assessee, but in contravention of the provisions of the statute assessments are being made by the Assistant Commissioner of Commercial Tax (I), Khandwa, respondent No. 1, herein, and therefore, the initiation of the assessment proceedings by the respondent No. 1 is without jurisdiction.
It is averred in the writ petition that the respondent No. 1 had undertaken to proceed against the petitioner for making assessments for the period from April 1, 1997 to March 31, 1998 on top priority basis though assessment relating to preceding years are pending for adjudication. It is set forth in the writ petition that there is no reason or justification to take up assessments relating to recent years on top priority basis while usually the practice is to finalise the assessment of the previous financial years.
3. I have heard Mr. Nema, learned Senior Counsel for the petitioner along with Miss Seema Agrawal, and Mr. Riyaz Mohd., learned Government Advocate, for the respondents. Submission of Mr. Nema is that Section 3 of the Adhiniyam categorise the taxing authorities and other officers and it confers powers on the Commissioner of Commercial Tax and not any other authority. It is his submission that the language employed in the aforesaid provision is “officers to assist him”, and hence, no other officer barring the Commissioner of Commercial Tax has jurisdiction to proceed with the assessment. It is his next contention that as per the norms and practice the assessing officer has to proceed yearwise and not according to his convenience or desire. Mr. Riyaz Mohd., learned Government Advocate, per contra, submitted that the relevant provision of the Adhiniyam would cover the Assistant Commissioner, and therefore, jurisdiction vests in the said authority to proceed with the assessment. With regard to second aspect it is canvassed by him that there is no rule which prescribes that the assessment proceedings are to be taken up in a chronological manner.
4. To appreciate the rival submissions raised at the Bar it is apposite to refer to Section 3 of the Adhiniyam which reads as under :
“3. Taxing authorities and other officers.–(1) There may be appointed a person to be the Commissioner of Commercial Tax and the following category of officers to assist him, namely,–
(a) Additional Commissioner of Commercial Tax ;
(b) Appellate Deputy Commissioner or Additional Appellate Deputy Commissioner of Commercial Tax ;
(c) Deputy Commissioner or Additional Deputy Commissioner of Commercial Tax ;
(d) Additional Commissioner or Additional Assistant Commissioner of Commercial Tax ;
(e) Commercial Tax Officer or Additional Commercial Tax Officer ;
(f) Assistant Commercial Tax Officer ; and
(g) Inspector of Commercial Tax.
(2) The Commissioner of Commercial Tax and the Additional Commissioner of Commercial Tax shall be appointed by the State Government and the other officers referred to in Sub-section (1) shall be appointed by the State Government or such other authority as it may direct.
(3) The Commissioner of Commercial Tax and the Additional Commissioner of Commercial Tax shall exercise all the powers and perform all the duties conferred or imposed on the Commissioner by or under this Act throughout the State and for this purpose any reference to the Commissioner in this Act shall be construed as a reference to the Additional Commissioner of Commercial Tax.
(4) Other officers referred to in Sub-section (2) shall within such areas as the appointing authority may, by general or special order specify, exercise such powers as may be conferred and perform such duties as may be imposed by or under this Act.”
Section 46 of the Adhiniyam deals with the delegation of Commissioner’s power and duties. The said provision is as follows :
“46. Delegation of Commissioner ‘s power and duties.–Subject to the provisions of this Act and to such restrictions and conditions as may be prescribed, the Commissioner may, by order in writing, delegate any of his powers and duties under this Act except those under Sub-section (2) of Section 74 to any person appointed under Section 3 to assist him :
Provided that power under Section 62 shall not be delegated to an officer below the rank of a Deputy Commissioner of Commercial Tax.”
The learned counsel for the petitioner has given immense emphasis on the word “assist” to highlight that the officers who have been categorised in Section 3(1)(a) to 3(l)(g) are only empowered to assist the Commissioner in the functioning of his duties and they cannot usurp the jurisdiction by proceeding with the assessment. Learned Senior Counsel for the petitioner while referring to Section 46 has also commented that the word “assist” used in the said provision, even if accepted, such delegation would confine the realm of assistance and not beyond that. On a first flush the argument of learned Senior Counsel for the petitioner looks quite attractive but on a deeper scrutiny it pales into insignificance. If the provisions are read in entirety and in proper perspective it becomes graphically clear that the other officers who have been enumerated under Section 3 of the Adhiniyam have the jurisdiction to assist if they have been so authorised by the Commissioner. Mr. Nema has submitted that the power conferred on the Commissioner even if delegated to the said authorities it has to be confined to the sphere of assistance and not beyond that. In this context, I may also usefully refer to Rule 91 of the Madhya Pradesh Vanijyik Kar Niyam, 1995 which provides that the Commissioner may subject to the restrictions and conditions specified in column 4 of the Table annexed to the said Rule can delegate powers conferred on him and the duties imposed upon him.
On a fair glance of the table it is clear that the Commissioner can delegate the power to determine the liability to pay tax, to determine and assess tax and/or impose penalty. It is to be noted that Section 3 of the statute deals with the appointment of authorities who are competent to assist the Commissioner and Section 46 stipulates the power of delegation. In a conjoint reading of the aforesaid provisions it is perceptible that the Commissioner cannot travel beyond the authorities whose names find mention in Section 3. When the Rule 91 is read in the obtaining context there remains no iota of doubt that the Commissioner can authorise the authorities who have been categorised under Section 3(1) to carry out the assessment or reassessment or such other duties as may be delegated to them. In this context, I may profitably refer to the decision rendered in the case of Auliya Sahab Bismilla Sahab, Burhanpur v. Commissioner of Commercial Tax, M.P. (1997) 30 VKN 510 wherein this Court while interpreting the provisions under the M.P. General Sales Tax Act and the Rules framed thereunder came to hold as under :
“4. Section 3 of the Act provides for taxing authorities and other officers and lays down that there may be appointed a person to be the Commissioner of Sales Tax and category of officers to assist him enumerated in Clauses (a) to (h) of Sub-section (1) of Section 3 of the Act. The expression ‘officers to assist him’ has been employed for describing officers to be appointed as taxing authorities. If the expression ‘officers to assist him’ is read in conjunction with ‘any person appointed under Section 3 to assist him’ appearing in Section 30 of the Act, it becomes apparent that reference is to an officer appointed under Section 3 of the Act and not in regard to the delegation of powers and duties of Commissioner for the purpose of seeking assistance of all such officers. The fallacy of the contention becomes apparent when examined from another perspective as well. Since Section 3 itself provides for appointment of officers to assist the Commissioner, there can be no occasion for the Commissioner to delegate his powers and duties to persons appointed under Section 3 of the Act to assist him, as that assistance is even otherwise available to the Commissioner from the nature of appointment of such officers. In view of the expression ‘any person appointed under Section 3 to assist him’ there is a clear indication that the delegation could be only to one of the officers appointed under Section 3 and not to any other employee of the Sales Tax Department or to an outsider. It cannot be disputed that apart from the officers appointed under Section 3 of the Act, the Sales Tax Department employs various other persons and it is only to specify the category of officers to whom the powers and duties can be delegated that reference has been made to Section 3 and persons appointed to assist the Commissioner in Section 30 of the Act.”
In view of the aforesaid, the first contention raised by Mr. Nema is without substance.
5. Now to the second limb of the argument of the learned counsel for the petitioner. It is urged by him that it is incumbent on the Assistant Officer to proceed yearwise in a chronological manner so that the assessment proceedings are completed in methodical manner and it is not open to the Assistant Officer to take assessment proceedings pending. It is commented by Mr. Nema that such an exercise by the Assistant Officer not only exposes his arbitrariness and non-methodical working pattern which causes serious prejudice to the assessee. Though Mr. Nema advanced such a contention, he fairly stated that there is no such provision which stipulates that the Assistant Officer is duty bound to take up the assessment on the yearwise basis and in a chronological manner. In absence of any provision in the statute or the rules in this regard, I am afraid, a writ of mandamus cannot be issued to the said officer to proceed in a particular manner. It is not disputed at the Bar that the assessing officer has made the assessment, as per Section 27(8)(i), in respect of a registered dealer and a dealer referred to in Clause (b) of Sub-section (6) within a period of two calendar years from the end of the period for which assessment is to be made. In absence of any violation of the provisions as have been provided under Section 27 of the Adhiniyam which relates to assessment of tax, and as the assessment is made within the limitation, no direction can be issued to the assessing officer to take up the assessment of a particular year. That lies solely within his discretion. Thus, I do not find any merit in the second submission of the learned counsel for the petitioner. However, it is observed that the petitioner may make a prayer before the assessing officer to take up the assessment proceeding in a chronological manner and in that event the assessment officer may deal with the prayer of the petitioner in accordance with law and in exercise of proper discretion.
6. The writ petitions are dismissed accordingly. However, there shall be no order as to costs.