REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6889-6891 OF 2011
[Arising out of SLP (C) Nos. 19104-19106 of 2008]
State of Jharkhand & Ors. Etc. .... Appellants
Versus
M/s. Shivam Coke Industries, Dhanbad, Etc. .... Respondents
With
CIVIL APPEAL NO. 6892 OF 2011
[Arising out of SLP (C) No. 21491 of 2008]
With
CIVIL APPEAL NO. 6893 OF 2011
[Arising out of SLP (C) No. 8424 of 2010]
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. Delay condoned in SLP (C) No. 8424 of 2010.
2. Leave granted.
By this common judgment and order, we propose to dispose of these
appeals as they involve similar issues both of facts as also of law and
therefore, they were heard together.
3. Appeals arising out of SLP (Civil) Nos. 19104-19106 of 2008 are
directed against the judgment and order dated 14.3.2008 in WP (T) No.
6377 of 2007, WP (T) No. 5895 of 2007 and WP (T) No. 5892 of 2007. The
appeal arising out of SLP (Civil) No. 21491 of 2008 is directed against the
judgment and order dated 19.3.2008 in WP (T) No. 6071 of 2007 and the
appeal arising out of SLP (Civil) No. 8424 of 2010 is directed against the
judgment and order dated 31.7.2009 in W.P. (T) 54 of 2009 passed by the
High Court of Jharkhand at Ranchi allowing all the Writ Petitions filed by
the respondents herein.
CIVIL APPEAL ARISING OUT OF SLP (C) NO. 19104 OF 2008
4. The facts leading to the filing of the case in the appeal arising out of
SLP (C) No. 19104 of 2008 are that the respondent-M/s Shivam Coke
Industries, Dhanbad is a manufacturer of coal and was registered under
the provisions of the Bihar Finance Act, 1981 [now repealed – for short
“BFT Act, 1981”] and presently under the provisions of Jharkhand Value
Added Tax, 2005. Respondent-assessee being manufacturers of hard coke
buys coal from Bharat Coking Coal Ltd. after making the payment of local
Sales Tax @ 4% which is being used as an input for the purpose of
manufacturing the hard coke. Respondent was assessed to tax for the
Financial Years 1988-89, 1992-93 and 1996-97 determining the tax on
intra-State sales transactions as well as Central Sales Tax on inter-State
sales transactions. Respondent preferred an Appeal before the Joint
Commissioner of Commercial Taxes (Appeals), Dhanbad Division,
Dhanbad against the assessment orders passed between 26.4.1990 to
23.12.1998 for the Financial Years 1988-89, 1992-93 and 1996-97, who
vide order dated 25.08.2003 remanded the aforesaid assessment
proceedings by a common order to re-examine the books of account and
to re-determine the nature of sales as to whether they are intra-state sales
or inter-state sales, on the basis of the books of account and the audit
reports as well as on the basis and within the meaning and scope of
Section 3(a) of the Central Sales Tax Act, 1956 (for short “the CST Act”).
Thereafter, Deputy Commissioner of Commercial Taxes, Dhanbad Circle
on the basis of guidelines issued by the Joint Commissioner of
Commercial Taxes (Appeals) passed the revised assessment orders on
26.12.2003 reversing the then inter-State sales under Section 3(a) of the
CST Act 1956 into the intra-State sales. Respondent on 10.3.2005 filed
an application for refund of excess amount of tax after adjustment of the
amount to be paid by Respondent. Accordingly, on 21.8.2006 notice was
issued by Deputy Commissioner of Commercial Taxes to Respondent to
file its refund application before the Joint Commissioner of Commercial
Taxes since the amount refundable to the Respondent is above Rs.
25,000/-. Thereafter in the year 2006, as is alleged by the respondent,
the Deputy Commissioner of the Dhanbad Circle got changed and the new
Deputy Commissioner examined the revised assessment orders of the
Respondent and he opined that the revised assessment orders do not
conform to the appellate direction and Deputy Commissioner informed the
Joint Commissioner of Commercial Taxes (Administration) about his
observations. The Joint Commissioner of Commercial Taxes
(Administration), Dhanbad Division, Dhanbad [Appellant No. 4] then
initiated the proceeding suo motu under Section 46(4) of the adopted
Bihar Finance Act, 1981 [now repealed] and issued notice/Memo No. 744
dated 1.8.2007 directing the Respondent to furnish the complete sets of
books of account in order to determine the legality and propriety of the
said revised assessment orders conforming to the appellate order. On
28.11.2007 Respondent filed Writ Petition before the High Court of
Jharkhand which was registered as WP (T) No. 6377 of 2007 praying for a
direction to quash the notice/Memo No. 883 dated 20.9.2007 [which was
issued in pursuance to earlier notice/Memo No. 744 dated 1.8.2007]
issued by the Joint Commissioner of Commercial Taxes (Administration)
for initiating the proceeding suo motu under Section 46(4) of the repealed
BFT Act, 1981 and also for quashing the order dated 26.11.2007 passed
by the Joint Commissioner of Commercial Taxes by which he set aside the
revised assessment order dated 26.12.2003. The High Court of Jharkhand
vide its order dated 14.03.2008 allowed the Writ Petitions of the
respondent herein against which the appellants have filed the present
appeals on which we heard the learned counsel appearing for the parties.
CIVIL APPEALS ARISING OUT OF SLP (C) NOS. 19105-06 OF 2008
5. The facts leading to the filing of appeals arising out of SLP (C) Nos.
19105-06 of 2008 are that the Respondent -M/s. Rani Sati Coke
Manufacturing Company, Baliyapur, Dhanbad is engaged in processing of
coal to coke and was assessed to tax for the Financial Years from 1984-85
to 2000-2001 determining the tax on “intra-State sales” transactions, as
well as Central Sales Tax on inter-State sales transactions. Respondent
filed an appeal against the assessment orders passed between 29.12.1987
to 10.3.2003 for the Financial Years from 1984-85 to 2000-01 and the
appellate authority, i.e., the Joint Commissioner of Commercial Taxes
(Appeal), Dhanbad Division, Dhanbad remanded the aforesaid assessment
proceedings by a common order to re-examine the nature of intra-State
sales and inter-State sales on the basis of the books of account and the
audit reports as well as on the basis of the meaning and scope of Section
3(a) of the CST Act, 1956. Thereafter, the Deputy Commissioner of
Commercial Taxes passed the revised assessment order vide orders dated
14.12.2005 and 29.12.2005 reversing / converting the then inter-State
sales under Section 3(a) of the CST Act, 1956 into the intra-State sales.
Pursuant thereto, Respondent filed prescribed refund application before
the Deputy Commissioner of Commercial Taxes. Thereafter in the year
2006, it is alleged by the respondents that, the Deputy Commissioner of
the Dhanbad Circle got changed and the new Deputy Commissioner
examined the revised assessment orders of the Respondent and he opined
that the revised assessment orders do not conform to the appellate
direction and as such do not have any merit as they were re-assessed on
the basis of same facts for converting the then inter-State sales into the
intra-State sales, which resulted the claim of refund and Deputy
Commissioner informed the Joint Commissioner of Commercial Taxes
(Administration) about his observations. Pursuant to this Joint
Commissioner of Commercial Taxes (Administration) initiated the
proceeding suo motu under Section 46(4) of the Bihar Finance Act, 1981
and issued notice No. 850 dated 06.09.2007 directing Respondent to
furnish the complete sets of books of account, in order to determine the
legality and propriety of the said revised assessment orders conforming to
the appellate order. Thereafter, Respondent No. 2 filed two Writ Petitions
before the High Court of Jharkhand which were registered as W.P. (T) Nos.
5892 and 5895 of 2007 praying for the direction to the appellants for
immediate refund of the entire amount arising out of the revised
assessment orders in which High Court directed the appellants to
participate in revision proceedings, after which Respondent filed an
amended petition before the High Court by bringing the fact that the
revision proceedings under Section 46(4) of the Bihar Finance Act, 1981
was opened on the basis of an application of the Deputy Commissioner
which is not permitted as per the provisions of the repealed BFT Act, 1981
and that the same is also barred by limitation. The High Court of
Jharkhand vide its order dated 14.03.2008 allowed the Writ Petitions of
the respondents herein against which the appellants have filed the
present appeals on which we heard the learned counsel appearing for the
parties.
CIVIL APPEALS ARISING OUT OF SLP (C) NO. 21491 AND 8424 OF
2008
6. The appeals arising out of SLP(C) No. 21491 of 2008 are against the
judgment and order of the High Court of Jharkhand dated 19.03.2008
following the judgment in WP (T) NO. 6377 of 2007. The facts of this
appeal and also of the appeal arising out of SLP (C) No. 8424 of 2010 are
similar to the other appeals at hand. So, we need not go into the detailed
facts of the said two appeals.
7. The learned counsel appearing for the appellant while taking us to
the impugned judgment and also the connected records submitted that
judgment and order passed by the High Court is incorrect. He further
submitted that the findings arrived at by the High Court are erroneous
and based on wrong readings of the materials available on record.
8. The learned counsel appearing for the respondents on the other
hand while drawing support from the impugned judgment and order
submitted that the findings recorded by the High Court are findings of fact
and therefore this Court should not interfere with the aforesaid
conclusions of fact arrived at by the High Court by giving cogent reasons
for its conclusions.
9. Upon reading the entire records and materials placed and also upon
hearing the learned counsel appearing for the parties, in our considered
opinion three following issues appear to arise for our consideration;
a) Whether the suo motu power of revision under Section 46(4) of the
BFT Act, 1981, vested with the Joint Commissioner was legally and
properly exercised in the present case;
b) Whether or not the action taken by the Department was barred by
limitation and whether such action was bad for not having been
initiated within a reasonable time;
c) Whether the order dated 26.11.2007 passed by the Joint
Commissioner setting aside the revised assessment order dated
26.12.2003 is proper and could be maintained;
10. We propose to deal with the aforesaid three issues one after the other
and record our reasons for coming to the decision in each of the aforesaid
issues;
Issue 1: Whether exercise of Suo Motu power of revision as provided
under Section 46(4) of the BFT Act, 1981 could be upheld;
11. Section 46 of the BFT Act, 1981 with which we are concerned in the
present case came to the statute book with the enactment of Bihar
Finance Act, 1981. The aforesaid Act was a consolidated Act which was
passed by the State Legislature amending the law relating to levy of tax on
sale and purchase of goods. In the said Act, Section 45 provides for the
provision of filing an appeal whereas Section 46 of the Act lays down the
provision of revision. In the present case, we are only concerned with the
provision of revision and in our estimation, the entire provision of Section
46 should be extracted hereinafter.
46. Revision – (1) Subject to such rules as may be made by
the State Government an order passed on an appeal under sub-
section (1) or (2) of section 45 may, on application, be revised
by the Tribunal.
(2) Subject as aforesaid any order passed under this part or
the rules made thereunder, other than an order passed by the
Commissioner under sub-section (5) of section 9 or an order
against which an appeal has been provided in section 45 may,
on application be revised.
(a) by the Joint Commissioner, if the said order has been
passed by an authority not above the rank of Deputy
Commissioner; and
(b) by the Tribunal, if the said order has been passed by
the Joint Commissioner or Commissioner.
(3) Every application for revision under this section shall be
filed within ninety days of the communication of the order
which is sought to be revised, but where the authority to whom
the application lies is satisfied that the applicant had sufficient
cause for not applying within time, it may condone the delay.
(4) The Commissioner may, on his own motion call for an
examine the records of any proceeding in which any order has
been passed by any other authority appointed under section 9,
for the purpose of satisfying himself as to the legality or
propriety of such order and may, after examining the record
and making or causing to be made such enquiry as he may
deem necessary, pass such order as he thinks proper.
(5) No order under this section shall be passed without giving
the appellant as also the authority whose order is sought to be
revised or their representative, a reasonable opportunity of
being heard.
(6) Any revision against an appellate order filed and pending
before the Joint Commissioner or a revision against any other
order filed and pending before the Deputy Commissioner since
before the enforcement of this part shall be deemed to have
been filed and/or transferred respectively to the Tribunal and
Joint Commissioner; and any revision relating to a period prior
to the enforcement of this part against an appellate order, or
against any other order passed by an authority not above the
rank of Deputy Commissioner shall, after the enforcement of
this part, be respectively filed before the Tribunal and the Joint
Commissioner.
12. The said Act came to be amended in 1984. Section 10 of the Bihar
Finance Amendment Act, 1984 amended Section 46 in some respect
which again is extracted hereinbelow:-
10. Amendment of section 46 of the Bihar Act V, 1981 (Part
I). – In sub-section (3) of section 46 of the said Act for
the word “sixty” the word “ninety” shall be substituted.
(2) For sub-section (4) the following sub-section shall be
substituted namely :-
“4 (a) The Commissioner may, on his own motion call for and
examine the records of any proceeding in which any order
has been passed by any other authority appointed under
section 9, for the purpose of satisfying himself as to the
legality or property of such order and may, after examining
the record and making or causing to be made such enquiry
as he may deem necessary, pass such order as he thinks
proper.
13. By inserting a provision namely Section 7 of the Bihar Finance
(Amendment) Ordinance, 1989, clause (b) of sub-Section (4) has been
deleted with effect from May, 1989. Therefore, the statutory provision that
now stands and is operative is that Section 46 provides for a revision of all
appellate and other orders passed by various authorities under the BFT
Act, 1981. According to the statutory provision as applicable, power of
revision is vested with the Tribunal and the Joint Commissioner, which
power is to be exercised on application by any person aggrieved, but
subject to time limit prescribed in sub-Section (3) i.e. 90 days of the
communication of the order with a further power to condone the delay, if
sufficient cause is shown. There is an additional power vested on the
Commissioner which empowers the Commissioner to initiate suo motu
revision proceedings at any time and for exercising such power no
limitation has been prescribed in the statute. The power of the
Commissioner to initiate such suo motu revisional proceeding has been
delegated to the Joint Commissioner of Commercial Taxes
(Administration) against the orders of the officers lower than his rank
which is so delegated in terms of the notification issued by the State of
Bihar under S.O. No. 795 dated 28th June 1986.
14. It is thus established that under Section 46 of the BFT Act, 1981, it
is the Commissioner who on the basis of an application filed by an
aggrieved party revise the order passed by any authority subordinate to
him. He also has the additional power alongwith the Joint Commissioner
as a delegatee as provided under Section 46(4) of the BFT Act, 1981 to
revise an order passed by an authority subordinate to it by exercising its
suo motu power.
15. In all these appeals, the Joint Commissioner of Commercial Taxes
has exercised the power vested on him under Section 46(4) of the BFT Act,
1981 which power in most cases concerning the present appeals was
exercised by him within a period of three years but in some other cases
beyond the expiry of three years period, but soon thereafter.
16. In that view of the matter, counsel appearing for the respondent
submitted in the High Court that exercise of such power by the Joint
Commissioner after expiry of more than two years time is illegal, without
jurisdiction and bad in law. The Division Bench of the Jharkhand High
Court found force in the aforesaid submissions of the counsel appearing
for the respondent and held that such suo motu power vested on an
authority must be exercised within three years period which is a period
prescribed under Article 137 of the Limitation Act, 1963. According to
the High Court where no time limit is prescribed for filing a revision,
Article 137 of the Limitation Act would apply to such cases. It was further
held that since under Section 46(4), no time limit is prescribed the
limitation as prescribed under Article 137 of the Limitation Act would
apply to the facts and circumstances of the present case.
17. Counsel appearing for the appellant, however, submitted before us
that the aforesaid contentions on the face of it cannot be accepted as a
correct position in law for by enacting sub-Section (4) in Section 46, the
legislature thought it fit not to impose any restriction or time limit so far
as limitation is concerned and therefore to hold that Article 137 of the
Limitation Act would apply to such provisions is nothing but misreading
of the provisions for if that was the intention of the legislature it would
have so stated specifically by making the said provision applicable to a
case like this.
18. The counsel therefore, submitted that such power of initiation of suo
motu revision proceedings by the Commissioner or Joint Commissioner as
the case may be should be held to be without any time or such restriction
or at least it should be held that such exercise of power of revision could
be exercised suo motu within a reasonable time depending on the facts
and circumstances of each case.
19. Another submission which is advanced by the counsel appearing for
the respondent was that the Joint Commissioner has exercised the power
of suo motu revision in the instant case on the basis of an application
filed by the Deputy Commissioner which was sent to the Joint
Commissioner by him and that application was drawn up and submitted
under Section 46(4) itself and therefore, the entire exercise of power by the
Joint Commissioner is fallacious, untenable and should be held to be
illegal.
20. The counsel appearing for the appellant, however, refuted the said
allegations and submitted that although Deputy Commissioner had
written a letter to the Joint Commissioner bringing to his notice some
mistakes and errors apparent on the face of records and illegalities by his
predecessor in his order, but, it was a power which was exercised by the
Joint Commissioner independently on his own accord and therefore, it
cannot be said that the aforesaid power was exercised illegally or without
jurisdiction.
21. We may therefore, refer to the materials on record so as to record our
findings on the aforesaid issue.
22. In all these appeals, there are letters which were written by the
Deputy Commissioner of Commercial Taxes to the Joint Commissioner
(Administration). One of such letter is dated 28.8.2007. In the said letter
it is stated by the Deputy Commissioner that the said communication is
regarding filing of suo motu revision under Section 46(4) of the BFT Act,
1981. The aforesaid letter by the Deputy Commissioner, Commercial
Taxes was written to the Joint Commissioner (Administration). In the
said letter, the Deputy Commissioner has pointed out some alleged
mistakes in the original tax assessment order and the revised order. He
also stated in that communication that he is unable to agree with the
revised tax assessment order and reimbursement order passed by the
Divisional Incharge and therefore, according to his opinion a revision
should be filed under Section 46(4) of the BFT Act, 1981 against the
revised tax assessment order dated 29.12.2005
23. Our attention was also drawn to the notice for revision issued by the
Joint Commissioner of Commercial Taxes (Administration). One of the
notices is dated 17.12.2007 issued to M/s. Shivam Coke Industries
namely the respondent herein for the assessment years 1988-1989 to
1992-1993 and 1996-1997. The said notice reads as follows:-
“Whereas all the points and facts have not been considered
while passing the revised assessment orders pertaining to
the above cases which were to be considered as per
directions of the appellate court, hence the related revised
assessment orders are not in conformity neither the
directions of the appellate court and the provisions of law.
In the light of the above facts the legality & propriety of the
revised assessment orders has not been established and
hence the revision of the said orders have been considered
necessary.
You are hereby directed to be present before the
undersigned on 15.5.2007 and place your side as to why
the above stated revised orders should not be set aside?
Joint Commissioner of Commercial Taxes (Adm.)
Dhanbad Division, Dhanbad”
24. Such orders are also existing against similar notices in the
connected matters.
25. Relying on the aforesaid two documents, the counsel for the
respondent submitted before us that it is apparent on the face of the
record that the Joint Commissioner of Commercial Taxes initiated the suo
motu action on the basis of the letter of the Deputy Commissioner,
Commercial Taxes who had stated that the revision should be filed under
Section 46(4) of the BFT Act, 1981. It was submitted in such a situation
and that since it is an application filed by the Deputy Commissioner, the
same was a power to be exercised under Section 46 (2) of the BFT Act,
1981 which is an ordinary power of revision to be exercised by the
competent authority on an application filed by the aggrieved party and
here the Deputy Commissioner. According to the counsel, since the
Deputy Commissioner is an aggrieved party, he could file such an
application seeking for revision within a period prescribed i.e. 90 days and
in that view of the matter even if the Joint Commissioner exercises suo
motu power, such power could and should have been exercised within a
period of 90 days as prescribed.
26. We are, however, unable to accept the aforesaid contentions for the
simple reason that a bare perusal of the notice issued on 17.12.2007, the
contents of which have been extracted hereinbefore would indicate that
the aforesaid notice was issued by the Joint Commissioner by exercising
his individual suo motu power as provided under Section 46(4). It is not
a case where such notice was issued on the basis of an application filed
by the Deputy Commissioner. This is obvious because in the said notice,
there is absolutely no reference made of the application sent by the
Deputy Commissioner. If from the available records of a particular case,
the Joint Commissioner forms an independent opinion that the same is a
case where suo motu power of Revision should be exercised, he is
empowered to so exercise such suo motu power of revising an order which
appears to be illegal and without jurisdiction to the competent authority
who is empowered to issue such notice by recording his reasons for
coming to such a conclusion in the notice itself.
27. In the present case, the Joint Commissioner has exercised his own
independent mind for issuing the notice and also recorded his own
reasons for coming to a conclusion as to why the power under Section
46(4) should be exercised. Having recorded the aforesaid reason, such
notice was issued to the assessee after forming a decision. The assessee
was informed by issuing the said notice that the legality and propriety of
the revised assessment order has not been established because of the
reasons mentioned in the notice and therefore, the revision of the said
orders is proposed is it has been considered necessary. By the said
notice, the assessee was directed to be present before the Joint
Commissioner and place his side as to why the above revised assessment
order should not be set aside.
28. The respondent being aggrieved by the issuance of the aforesaid
order filed a writ petition before the High Court. The High Court,
however, did not grant any stay of the aforesaid notice and permitted the
respondent to contest the said notice in accordance with law during the
course of which the Joint Commissioner of Commercial Taxes has set
aside the revised orders and sent back the matter for fresh assessment to
the assessing officer.
29. The aforesaid subsequent development which had taken place
during the pendency of the writ petition in the High Court has not been
addressed to and decided by the High Court as the High Court has
disposed of the entire writ petition on two issues namely on the issue of
the ambit and scope of Section 46(4) of the BFT Act, 1981 and also on the
ground of limitation.
30. The Deputy Commissioner, Commercial Taxes Division has pointed
out in his communication to the Joint Commissioner several loopholes in
the revised assessment orders passed by the assessing officer. The
Deputy Commissioner has also pointed out how the assessee has made
conflicting claims and statements and also how while upholding such
contradictory claims, there has been a revenue loss for the department.
Alongwith his letter, some of the relevant records were transmitted to the
Joint Commissioner. It is true that the Deputy Commissioner,
Commercial Taxes Division has brought out and pointed out some of the
illegalities and irregularities committed in the revised assessment orders
passed by his predecessor in the assessment orders relating to the
respondent.
31. But the impugned notice issued by the Joint Commissioner ex facie
indicates that he being the competent authority has formed an
independent opinion and personal satisfaction that the legality and
propriety of the revised assessment orders has not been established
because of the reasons specifically stated in the said notice and therefore
he has thought it fit to exercise his power of suo motu revision consequent
upon which the aforesaid notice was issued.
32. There is no reference in the said notice to the letter and any other
materials contained with the letter of the Deputy Commissioner anywhere
in the notice and therefore, it cannot be said that while coming to the
aforesaid conclusion in the impugned notice, the Commissioner was
influenced only by the opinion of the Deputy Commissioner. On
consideration of the records we are satisfied that it was not a revision
initiated on the basis of any application filed by an aggrieved party namely
the Deputy Commissioner but initiation of a Revisional proceeding by the
Joint Commissioner by forming his own opinion and satisfaction to
exercise suo motu power vested under Section 46(4) of the BFT Act on the
basis of the materials on record. The aforesaid contention is therefore,
rejected.
Issue 2 – Whether or not the action taken by the Department was
barred by limitation
33. The next issue which now arises for our consideration is whether the
aforesaid exercise of power of drawing up a revisional proceeding by
exercising suo motu power was not exercised within the period of
limitation or within a reasonable period of time.
34. We have also extracted the provision which clearly indicates that no
period of limitation is prescribed for initiation of suo motu revisional
proceeding by the Commissioner or the Joint Commissioner as the case
may be, whereas a period of limitation is prescribed for filing a revision
application by an aggrieved party for initiation of the revisional
jurisdiction of the Commissioner which period is 90 days, as is stood at
that relevant time.
35. The High Court has held that there cannot be an unlimited period of
limitation even for exercising of suo motu revisional power for initiation of
a proceeding by the Commissioner or the Joint Commissioner as the case
may be and therefore provision of Article 137 of the Limitation Act was
read into the Act laying down that at least within a period of three years
from the date of accrual of the cause of action such a power of suo motu
Revision should be exercised by the Joint Commissioner.
36. We are again unable to accept the aforesaid contention as the
legislature has not stated in the provision at all regarding the applicability
of Article 137 of the Limitation Act to Section 46(4) of the BFT Act. If the
legislature intended to provide for any period of limitation or intended to
apply the said provision of Article 137 into Section 46(4), the legislature
would have specifically said so in the Act itself. When the language of the
legislature is clear and unambiguous, nothing could be read or added to
the language, which is not stated specifically. Therefore, the High Court
wrongly read application of Section 137 of the Limitation Act to Section
46(4) of the BFT Act.
37. It is a settled position of law that while interpreting a statute,
nothing could be added or subtracted when the meaning of the section is
clear and unambiguous. In this connection we may also refer to the
decision of this Court in Sakuru vs. Tanaji reported in (1985) 3 SCC 590
wherein it was stated by this Court that the Limitation Act applies to
courts and not to quasi judicial authority.
38. The aforesaid principle and settled position of law was totally ignored
by the High Court while laying down that Article 137 of the Limitation Act
would be applicable to the facts and circumstances of the present case.
39. We would, however, agree with the position that such a power
cannot be exercised by the revisional authority indefinitely. In our
considered opinion, such extra ordinary power i.e. suo motu power of
initiation of revisional proceeding has to be exercised within a reasonable
period of time and what is a reasonable period of time would depend on
the facts and circumstances of each case.
40. For this proposition, a number of decisions of this Court can be
referred to on which reliance was placed even by the counsel appearing for
the respondent.
41. In Sulochana Chandrakant Galande Vs. Pune Municipal Transport
and Others reported in (2010) 8 SCC 467, this Court dealing with the
issue of “reasonable time” held as follows:-
29. In view of the above, we reach the inescapable conclusion
that the revisional powers cannot be used arbitrarily at a
belated stage for the reason that the order passed in revision
under Section 34 of the 1976 Act, is a judicial order. What
should be reasonable time, would depend upon the facts and
circumstances of each case.
42. In Govt. of India v. Citedal Fine Pharmaceuticals, Madras and
Others reported in (1989) 3 SCC 483:
6. ……While it is true that Rule 12 does not prescribe any
period within which recovery of any duty as contemplated by
the rule is to be made, but that by itself does not render the
rule unreasonable or violative of Article 14 of the
Constitution. In the absence of any period of limitation it is
settled that every authority is to exercise the power within a
reasonable period. What would be reasonable period, would
depend upon the facts of each case…..
43. In State of Punjab & Ors. v. Bhatinda District Cooperative Milk
Producers Union Ltd. reported in (2007)
11 SCC 363
18. It is trite that if no period of limitation has been
prescribed, statutory authority must exercise its jurisdiction
within a reasonable period. What, however, shall be the
reasonable period would depend upon the nature of the
statute, rights and liabilities thereunder and other relevant
factors.
44. Now, the question that arises for our consideration is whether the
power to exercise Suo motu revisional jurisdiction by the Joint
Commissioner in the present cases was exercised within a reasonable
period. On perusal of the records, we find that such powers have been
exercised within about three years of time in some cases and in some
cases soon after the expiry of three years period. Such period during
which power was exercised by the Joint Commissioner cannot be said to
be unreasonable by any stretch of imagination in the facts of the present
case. Three years period cannot be said to be a very long period and
therefore, in all these cases, we hold that the power was exercised within
a reasonable period of time.
Issue 3: Whether the order dated 26.11.2007 passed by the Joint
Commissioner is proper and could be maintained;
45. Having decided the aforesaid two issues in the aforesaid manner, the
next and the last issue that arises for our consideration is whether the
order dated 26.11.2007 passed by the Joint Commissioner setting aside
the revised assessment order dated 27.12.2003 is proper and could be
maintained, as the said order was passed during the pendency of the writ
petition in the High Court.
46. On this issue also, we have heard the learned counsel appearing for
the parties. The aforesaid order dated 26.11.2003 was passed while the
respondent was fighting out the litigation in the High Court and therefore,
it was not possible for the assessee to give his entire focus and attention
and also to give full concentration to the aforesaid proceeding pending
before the Joint Commissioner. The learned counsel appearing for the
appellant also could not dispute the fact that the respondent was
somewhat handicapped in contesting the aforesaid matter very effectively
before the Joint Commissioner.
47. Considering the entire facts and circumstances of the case, we also
set aside the order dated 26.11.2007 and remit back the matter to the
Joint Commissioner once again to hear the parties and to pass fresh order
in respect of the legality and propriety of the revised assessment order
dated 26.12.2003. Consequently, the matter is now remitted to the Joint
Commissioner of Commercial Taxes to pass order in accordance with law
giving reasons for its decisions as expeditiously as possible. The
impugned judgment and order passed by the High Court is set aside to
the aforesaid extent while remitting back the matter as aforesaid, leaving
the parties to bear their own costs.
……………………………………………..J
(Dr. MUKUNDAKAM SHARMA)
……………………………………………..J
(ANIL R. DAVE)
NEW DELHI
AUGUST 10, 2011