{"id":128427,"date":"1967-11-29T00:00:00","date_gmt":"1967-11-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/swastik-oil-mills-ltd-vs-h-b-munshi-deputy-commissioner-on-29-november-1967"},"modified":"2015-08-07T11:31:32","modified_gmt":"2015-08-07T06:01:32","slug":"swastik-oil-mills-ltd-vs-h-b-munshi-deputy-commissioner-on-29-november-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/swastik-oil-mills-ltd-vs-h-b-munshi-deputy-commissioner-on-29-november-1967","title":{"rendered":"Swastik Oil Mills Ltd vs H. B. Munshi, Deputy Commissioner … on 29 November, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Swastik Oil Mills Ltd vs H. B. Munshi, Deputy Commissioner … on 29 November, 1967<\/div>\n
Equivalent citations: 1968 AIR 843, \t\t 1968 SCR (2) 492<\/div>\n
Author: V Bhargava<\/div>\n
Bench: Bhargava, Vishishtha<\/div>\n
           PETITIONER:\nSWASTIK OIL MILLS LTD.\n\n\tVs.\n\nRESPONDENT:\nH.   B. MUNSHI, DEPUTY COMMISSIONER OF SALES TAX,BOMBAY\n\nDATE OF JUDGMENT:\n29\/11\/1967\n\nBENCH:\nBHARGAVA, VISHISHTHA\nBENCH:\nBHARGAVA, VISHISHTHA\nSHAH, J.C.\nRAMASWAMI, V.\n\nCITATION:\n 1968 AIR  843\t\t  1968 SCR  (2) 492\n CITATOR INFO :\n RF\t    1972 SC  38\t (8,11)\n D\t    1976 SC1115\t (10,13)\n R\t    1976 SC1545\t (17)\n R\t    1976 SC2136\t (12,14)\n\n\nACT:\nRevisional   powers-suo\t motu\texercise   of-limitations-if\nfurther inquiry to gather additional material permissible.\nBombay\tSales Tax Act, 5 of 1946, Act 3 of 1953, s. 31,\t Act\n51 of 1959, ss. 57, 77(1) (a), 77(3)-Scope of.\n\n\n\nHEADNOTE:\nThe  appellant was registered as a dealer under the  various\nSales  Tax  Acts in force in Bombay from time to  time\ti.e.\nBombay\tActs  5 of 1946, 3 of 1953 and 51 of 1959.   In\t the\ncourse of its assessments to sales tax for the periods\tfrom\n1st April, 1948 to 31st March, 1950, and from 1st April 1950\nto  31st March, 1951, the appellant claimed  exemption\tfrom\ntax,  inter alia, in respect of certain despatches of  goods\nfrom  its  head office in Bombay to its\t branches  in  other\nStates.\t The Sales Tax Officer rejected these claims but, in\nappeal,\t the  Assistant\t Collector  accepted  the  claim  in\nrespect\t of  the despatches to various\tbranches  though  he\nrejected all other claims for exemption.  He also directed a\nrefund\tof  the excess 'tax collected from  the\t appellants.\nWhile  revision\t petitions filed by  the  appellant  against\nthese  orders  were pending, a notice was issued to  him  on\nJanuary\t 7, 1963 by the Deputy Commissioner of Sales Tax  in\nForm  XXIV  under s. 31 of the Bombay Sales Tax\t Act,  1953,\nintimating the appellant that he proposed to revise suo motu\nthe orders passed by the Assistant Collector in so far as he\nhad  allowed  deduction\t in  respect  of  the  entire  goods\ndespatched  to the appellants' branches outside\t Maharashtra\nbecause,  in so doing, he had overlooked certain  provisions\nof  law which were specified in the notice.  Tile  appellant\nfiled  a petition under Art. 226 of the Institution  seeking\nto quash the notice dated 7th January, 1963 but his petition\nwas dismissed by the High Court.\nIn  the appeal to this Court it was contended on  behalf  of\nthe  appellant,\t inter\talia (i) that  in  exercise  of\t the\nrevisional  powers, the Deputy Commissioner, whether  acting\nunder  the  Sales Tax Act of 1946, or of 1953, or  of  1959,\ncould  only  proceed  to take action on\t the  basis  of\t the\nmaterial already present on the record and was not  entitled\nto  act on conjecture or to institute any enquiry so  as  to\ninclude additional material nor to judge the correctness  of\nthe  order  sought to be revised; (ii) that  the  notice  in\nquestion  was issued on 7th January, 1963, when the  Act  of\n1959  had  already come into force and the Act of  1953\t had\nbeen  repealed;\t so that any revisional\t jurisdiction  could\nonly  be exercised by the Deputy Commissioner under the\t Act\nof  1959 and not under the Act of 1953-, as the power  under\ns. 57 of the Act of 1959 could only be exercised within five\nyears  from the date of the order sought to be revised;\t the\nnotice\tissued by the Deputy Commissioner was  time  barred;\nand (iii) that the proceedings to be instituted were  barred\nby  time,  because limitation of a reasonable  time;  within\nwhich  the  revisional Powers are to be\t exercised  must  be\nimplied in the statute itself.\n 493\nHELD : The proceedings initiated by the Deputy\tCommissioner\nof Sales Tax against the appellant were not incompetent\t and\nthe High Court was right in refusing the writ sought by\t the\nappellant.\n(i)  Whenever a power is conferred on an authority to revise\nan  order,  it\tis  entitled  to  examine  the\tcorrectness,\nlegality  and  propriety  of  the order\t and  to  pass\tsuch\nsuitable orders as it may think- fit in the circumstances of\nthe  particular\t case.\t The proceedings  for  revision,  if\nstarted suo motu, must not be based on a mere conjecture and\nthere  should  be some ground for  invoking  the  revisional\npowers.\t   Once\t these\tpowers\tare  invoked,\tthe   actual\ninterference must be based on sufficient grounds and, if  it\nis considered necessary that some additional enquiry  should\nbe  made to arrive at a proper and just decision, there\t can\nbe  no bar to the revising authority holding or directing  a\nfurther\t  enquiry   and\t thereafter   admitting\t  additional\nmaterial. [496 A-C]\nThe  State  of Kerala v. K. M. Cheria Ahdulla  and  Company,\n[1965] 1 S.C.R. 601, explained and followed.\nState  of Andhra Pradesh v. T. G. Lakshmnaiah Setty &  Sons,<\/a>\n12 S.T.C. 663; disapproves.\nIn  the\t present  case,. the notice  issued  by\t the  Deputy\nCommissioner, on the face of it, disclosed the reasons which\nled  him to take proceedings for exercising  his  revisional\npowers\tsuo  motu, and it could not be said on\tthose  facts\nthat  he  was  acting merely on conjecture.   There  was  no\nreason\tto think that, when proceeding with his inquiry,  he\nwould  not  keep within the limitations\t indicated  by\tthis\nCourt in K. M. Cheria Abdullas case.\n(ii) The  effect  of s. 77(1) (a) of the Act of 1959  is  to\ncontinue  in  force the Act of 1953 as well as: the  Act  of\n1946 to the extent to which they were in force when the\t Act\nof   1959  came\t into  force  for  the\tpurposes  of   levy,\nassessment, reassessment and collection of sales-tax.\tFur-\nthermore, by virtue of s. 7(e) of the Bombay General Clauses\nAct,  1904, which was made applicable to the repeal  of\t the\nAct  of\t 1953  by  s.  77(3) of\t the  1959  Act,  any  legal\nproceeding in respect of levy, imposition or recovery of tax\nis to continue and any fresh investigation, legal proceeding\nor remedy could be instituted as if there had been no repeal\nby the Act of 1959.  Consequently, the repeal of the Act  of\n1953  did  not\tin any way affect the power  of\t the  Deputy\nCommissioner to institute proceedings for revision suo\tmotu\nagainst the appellate order of the Assistant Collector which\nhad  been Passed in exercise of his power under the  Act  of\n1946. [499 C-500 B]\nAlthough  the  Deputy Commissioner, in seeking\tto  exercise\nrevisional  powers should have proceeded under s. 22 of\t the\nAct  of 1946 and not under s. 31 of the 1953 Act, this\tfact\nwas  immaterial as the provisions of the two  Sections\twere\nsimilar. [500 D-E]\n(iii)\t  Section 22 of the Act of 1946 and s. 31 of the Act\nof  1953  do not lay down any period of limitation  for\t the\nexercise  of the power of revision by a Deputy\tCommissioner\nsuo  motu  and no such limitation could be read in  the\t two\nActs. [500 G]\nThe  State  of Orissa v. Debaki Debi and Others,<\/a>  15  S.T.C.\n153.  Commissioner  of Income-tax, Bombay City 1  v.  Narsee\nNagsee\t&  Co.,\t 31 I.T.R. 164, Manordas Kalidas  v.  V.  V.\nTatke,\t11 S.T.C, 87.  Disesar House v. State of  Bombay,  9\nS.T.C. 654, distinguished.\n494\nMaharaj\t Kumar Kamal Singh v. C.I.T., Bihar and\t Orissa,  35\nI.T.R. 1, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 637 of
\n1967.\n<\/p>\n
Appeal from the judgment and order dated January 27, 1966 of
\nthe Bombay High Court in Misc.\tApplication No. 112 of 1963.
\nS.   T. Desai, G. L. Sanghi, B. Datta and O. C. Mathur,\t for
\nthe appellant.\n<\/p>\n
R.   M.\t Hazarnavis, S. P. Nayar, and R. H. Dhebar, for\t the
\nrespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nBhargava, J. The Swastik Oil Mills Ltd., appellant,  carries
\non business of manufacturing vegetable oils, soaps and other
\nproducts and selling them in India as well as exporting them
\noutside\t India.\t  It was registered as a  dealer  under\t the
\nvarious\t Sales\tTax Acts in force in Bombay.  The  first  of
\nthese Acts was the Bombay Sales Tax Act 5 of 1946, which was
\nreplaced  by th -Bombay Sales Tax Act 3 of 1953.  The  third
\nand  the  latest -Act now in force in Bombay is\t the  Bombay
\nSales  Tax Act 51 of 1959. ,’The appellant was\tassessed  to
\nsales  tax on its turnover for the periods from\t 1st  April,
\n1948  to 31st March, 1950, and from 1st April, 1950 to\t31st
\nMarch, 1951 on the basis of Returns of turnover submitted by
\nit.  In these Returns, the appellant claimed exemption\tfrom
\ntax  in respect of the turnover representing the  despatches
\nor  transfer  of goods from its Head Office Bombay,  to\t its
\nvarious\t Depots\t or Branches in other States in\t India,\t and
\nalso  exemption\t in respect of sales which were\t alleged  to
\nhave  taken place in the course of inter-State\ttrade  after
\n26th  January, 1950.  The Sales Tax Officer in his order  of
\nassessment  dated  2nd\tJanuary, 1954  rejected\t both  these
\nclaims.\t  The  appellant  went\tup  in\tappeal\tbefore\t the
\nAssistant  Collector  of Sales Tax, who,  in  his  appellate
\norder  dated 29th October, 1956, accepted the claim  of\t the
\nappellant in respect of the despatches to its various Depots
\nor  Branches  in other States in India, but  disallowed\t the
\nclaim  in  respect of the alleged inter-State sales.   As  a
\nresult of partially allowing the claim of the appellant, the
\nAssistant Collector reduced the tax imposed by a sum of\t Rs.
\n19,240-15-6  for the period between 1st April, 1948 to\t31st
\nMarch,\t1950, and Rs. 97,208\/for the second  period  between
\n1st April, 1950 to 31st March, 1951, and directed refund  of
\nthese amounts to the appellant.\t The revisions filed by\t the
\nappellant  against the rejection of its claim in respect  of
\ninter-State sales were still pending, when, on 7th  January,
\n1963,  a  notice was issued by the  Deputy  Commissioner  of
\nSales Tax, Bombay City Division, in Form XXIV under
\n 495<\/span>
\nsection 31 of the Bombay Sales Tax Act, 1953, intimating the
\nappellant that he proposed to revise suo motu the  appellate
\norders\tpassed\tby  the Assistant  Collector  of  Sales\t Tax
\ninsofar\t as  he\t had allowed deduction, in  respect  of\t the
\nentire\tgoods  despatched to its Branches  in  other  States
\noutside Maharashtra, because, in so doing, he had overlooked
\nthe  provisions contained in proviso (b) to sub-clause\t(ii)
\nof  Rule 1 under sub-section (3) of section 6 of the  Bombay
\nSales  Tax  Act,  1946 as amended by the  Bombay  Sales\t Tax
\nAmendment  Act 48 of 1949.  On receipt of this\tnotice,\t the
\nappellant put in appearance before the Deputy  Commissioner,
\nwho  is\t the respondent in this appeal, and  raised  several
\nobjections  against  the  proposed  revisional\tproceedings,
\nmaking a request that the proceedings be dropped.  Since the
\nrespondent did not accept this request, the appellant  filed
\na petition under Article 226 of the Constitution in the High
\nCourt  of Bombay challenging the notice dated  7th  January,
\n1963,  with  the prayer that the notice be quashed  and\t the
\nrespondent be restrained from taking any action against\t the
\nappellant in pursuance thereof.\t The petition was  dismissed
\nby  the High Court and, now, on certificate granted by\tthat
\nCourt,\tthe  appellant has come up in this  appeal  to\tthis
\nCourt.\n<\/p>\n
In this appeal, Mr. S. T. Desai, appearing on behalf of\t the
\nappellant,  urged  the same objections\tagainst\t the  notice
\nwhich  were  the basis of the prayer for writ  in  the\tHigh
\nCourt,\tand  we proceed to deal with them in  the  order  in
\nwhich he has put them forward before us in his\tsubmissions.
\nThe  first  point  urged by learned  counsel  was  that,  in
\nexercise  of the revisional powers, the Deputy\tCommissioner
\nof  Sales  Tax, whether acting under the Sales\tTax  Act  of
\n1946,  or  of 1953, or of 1959, could only proceed  to\ttake
\naction\ton the basis of the material already present on\t the
\nrecord\tand  was  not entitled to act on  conjecture  or  to
\ninstitute  any enquiry so as to include additional  material
\nin order to judge the correctness of the order sought to  be
\nrevised.   In support of this proposition,  learned  counsel
\nreferred  us to a decision of the Andhra Pradesh High  Court
\nin  State  of  Andhra Pradesh v. T. G.\tLakshmaiah  Setty  &
\nSons.<\/a>(1).   In\tthat  case,  the  Deputy  Commissioner,\t  in
\nexercising  the\t revisional jurisdiction, was found  by\t the
\nHigh  Court to have based his assessment on guess-work,\t and
\nthe  Court  held  that\t“this  conjecture  could  not  be  a
\n_justification\tfor  seeking  to revise\t the  order  of\t the
\nassessing  authority.  If the Deputy Commissioner could,  on
\nthe  material  before  him,  find  data\t for  revising\t the
\nassessment,  it was open to him to do so.  It must  be\tmade
\nclear  that  he\t has no jurisdiction to\t travel\t beyond\t the
\nrecord that is available to the assessing authority and\t the
\nbasis  should be found on the record already in\t existence.”
\nWe  are unable to accept this principle laid down,  by\tthat
\nHigh Court as
\n(1)  12 S.T.C. 663.\n<\/p>\n
496<\/span><\/p>\n
correct.   Whenever a power is conferred on an authority  to
\nrevise\tan order, the authority is entitled to\texamine\t the
\ncorrectness, legality and propriety of the order and to pass
\nsuch  suitable orders as the authority may think fit in\t the
\ncircumstances  of  the\tparticular  case  before  it.\tWhen
\nexercising such powers, there is no reason why the authority
\nshould\tnot  be\t entitled to hold an enquiry  or  direct  an
\nenquiry\t to be held and, for that purpose, admit  additional
\nmaterial.   The\t proceedings for revision,  if\tstarted\t suo
\nmotu, must not, of course, be based on a mere conjecture and
\nthere  should  be some ground for  invoking  the  revisional
\npowers.\t   Once\t those\tpowers\tare  invoked,\tthe   actual
\ninterference must be based on sufficient grounds and, if  it
\nis considered necessary that some additional enquiry  should
\nbe  made to arrive at a proper and just decision, there\t can
\nbe  no\tbar  to the revising  authority\t holding  a  further
\nenquiry\t or  directing such an enquiry to be  held  by\tsome
\nother  appropriate  authority.\t This  principle  has\tbeen
\nclearly\t recognised by this Court in The State of Kerala  v.
\nK.  M.\tCheria Abdulla and Company(1).\tIn that\t case,\tsub-
\nsection\t (2) of s. 12 of the Madras General Sales  Tax\tAct,
\n1939, which came up for interpretation, empowered the Deputy
\nCommissioner, suo motu or under certain circumstances on  an
\napplication, to call for and examine the record of any order
\npassed\tor proceeding recorded under the provisions of\tthat
\nAct  by any officer subordinate to him, for the\t purpose  of
\nsatisfying  himself as to the legality or propriety of\tsuch
\norder,\tor as to the regularity of such proceeding,  and  to
\npass  such  order with respect thereto as  he  thought\tfit.
\nThis Court held :-\n<\/p>\n
\t       “There\tis  no\tdoubt  that   the   revising
\n\t      authority may only call for the record of\t the
\n\t      order or the proceeding, and the record  alone
\n\t      may   be\tscrutinised  for  ascertaining\t the
\n\t      legality\t or   propriety\t of  an\t  order\t  or
\n\t      regularity  of the proceeding.  But  there  is
\n\t      nothing  in the Act that for passing an  order
\n\t      in exercise of his revisional jurisdiction, if
\n\t      the  revising authority is satisfied that\t the
\n\t      subordinate    officer   has   committed\t  an
\n\t      illegality  or  impropriety in  the  order  or
\n\t      irregularity in the proceeding, be cannot make
\n\t      or direct any further enquiry.”\n<\/p><\/blockquote>\n
It was further held
\n\t       “It  is,\t therefore,  not  right\t baldly\t  to
\n\t      propound\tthat,  in passing an  order  in\t the
\n\t      exercise of his revisional jurisdiction,\tthe’
\n\t      Deputy  Commissioner  must, in all  cases,  be
\n\t      restricted  to  the record maintained  by\t the
\n\t      officer subordinate to him, and can never make
\n\t      enquiry outside that record.”\n<\/p>\n
\t       (1)  [1965] 1 S.C.R. 601.\n<\/p>\n
\t       497<\/span><\/p>\n
While thus explaining the scope of the revisional power, the
\nCourt also indicated the limitations within which such power
\ncan be exercised, holding :-\n<\/p>\n
\t       ” It would not invest the revising  authority
\n\t      with  power to launch upon enquiries at  large
\n\t      so  as either to trench upon the powers  which
\n\t      are  expressly reserved by the Act or  by\t the
\n\t      Rules  to other authorities or to\t ignore\t the
\n\t      limitations inherent in the exercise of  those
\n\t      powers.\tFor instance, the power to  reassess
\n\t      escaped  turnover is primarily vested by\trule
\n\t      17  in  the  assessing officer and  is  to  be
\n\t      exercised subject to certain limitations,\t and
\n\t      the  revising authority will not be  competent
\n\t      to make an enquiry for reassessing a taxpayer.
\n\t      Similarly,  the power to make a best  judgment
\n\t      assessment  is vested by section 9 (2) (b)  in
\n\t      the   assessing  authority  and  has   to\t  be
\n\t      exercised\t in the manner provided.   It  would
\n\t      not  be  open  to the  revising  authority  to
\n\t      assume that power.” (p. 887).\n<\/p><\/blockquote>\n
In the present case, the notice issued by the Deputy Commis-
\nsioner\tof  Sales  Tax, on the face  of\t it,  discloses\t the
\nreasons which led him to take proceedings for exercising his
\nrevisional  powers suo motu, and it cannot be said on  those
\nfacts  that he was acting merely on conjecture.\t The  Deputy
\nCommissioner has not yet proceeded further under the  notice
\nto  make  the assessment.  We have no doubt that,  when\t the
\nDeputy\tCommissioner does make an enquiry, if any,  for\t the
\npurpose\t of exercising his revisional powers, he  will\tkeep
\nwithin\tthe limitations indicated by this Court in the\tcase
\ncited\tabove.\t The  notice  cannot  be  quashed   or\t the
\nproceedings restrained merely on the ground that the  Deputy
\nCommissioner  may  have to hold some enquiries in  order  to
\nproperly exercise his revisional jurisdiction.\tMr. Desai on
\nbehalf of the appellant emphasised the circumstance that  in
\ns.  12(2)  of the Madras General Sales Tax  Act,  which\t was
\nconsidered  by this Court, the Deputy  Commissioner’s  power
\nwas expressed by stating that he may pass such order as\t he,
\nthinks\tfit, while no such words occur in the  corresponding
\nprovisions  in the Bombay Sales Tax Acts with which  we\t are
\nconcerned, but we do not think that this circumstance  makes
\nany  difference.  A revising authority necessarily  has\t the
\npower  to  make\t such  order as,  in  the  opinion  of\tthat
\nauthority,  the\t case  calls  for  when\t the  authority\t  is
\nsatisfied that it is an appropriate case for interference in
\nexercise of revisional powers.\tIn fact, in S. 12(2) of\t the
\nMadras General Sales Tax Act, the Deputy Commissioner,\twhen
\nexercising  his\t powers, was to call for the record  of\t the
\norder  or  proceeding  before passing  any  order  which  he
\nthought\t fit,  so that there was an  expression\t used  which
\ncould  have been interpreted as limiting his powers  to\t the
\nexamination of the record only without holding any further
\n498<\/span>
\nenquiry,  and,\tyet,  this  Court  held\t that  the,   Deputy
\nCommissioner  could not be restricted to the record and\t was
\nempowered  to make an enquiry outside that record.   In\t the
\nprovisions  relating to revisions in the three Bombay  Sales
\nTax Acts, there are no such words indicating any limitation;
\nand  that  would be an additional reason  for  holding\tthat
\nthere can be no bar to an appropriate enquiry being held  by
\nthe  Deputy  Commissioner  when\t seeking  to  exercise\t his
\nrevisional powers suo motu.\n<\/p>\n
 The next point urged by learned counsel was that the notice
\nin  question was issued on the 7th January, 1963,  when\t the
\nAct of 1959 had already come into force and the Act of\t1953
\nhad  been repealed, so that if any  revisional\tjurisdiction
\ncould be exercised by the Deputy Commissioner, it could only
\nbe under the Act of 1959 and not under the Act of 1953.\t  On
\nthis  basis,  advantage\t was  sought  to  be  taken  of\t the
\ncircumstance  that,  under the Act of 1959,  the  revisional
\npowers conferred by s. 57 can be exercised within five years
\nfrom the date of the order sought to be revised and, at\t the
\nrelevant  time in 1963, could only be exercised\t within\t two
\nyears  from the date of that order.  The order sought to  be
\nrevised was passed on 29th October, 1956, so that the notice
\nto  exercise revisional powers was being issued more than  6
\nyears  after that order had been passed.  It appears  to  us
\nthat  this  submission is adequately met by  the  provisions
\ncontained in s. 77 of the Act of 1959.\tThe Act of 1953\t was
\nrepealed  by  s. 76 of the Act of 1959 and then s.  77\tlays
\ndown :\n<\/p>\n
\t       “(1)  Notwithstanding the repeal by s. 76  of
\n\t      any of the laws referred to therein,-\n<\/p><\/blockquote>\n
\t       (a)  those  laws (including any\tearlier\t law
\n\t      continued\t  in  force  under  any\t  provisions
\n\t      thereof), and all rules, regulations,  orders,
\n\t      notifications, forms and notices issued  under
\n\t      those laws and in force immediately before the
\n\t      appointed day shall, subject to the provisions
\n\t      of  s.  42  continue to have  effect  for\t the
\n\t      purposes\t  of\tthe    levy,\t assessment,
\n\t      reassessment, collection, refund or set-off of
\n\t      any  tax,\t or the granting of a  draw-back  in
\n\t      respect  thereof,\t or the\t imposition  of\t any
\n\t      penalty, which levy, assessment, reassessment,
\n\t      collection,   refund,  setoff,  draw-back\t  or
\n\t      penalty  relates\tto  any\t period\t before\t the
\n\t      appointed\t day,  or  for\tany  other   purpose
\n\t      whatsoever connected with or incidental to any
\n\t      of the purposes aforesaid;\n<\/p><\/blockquote>\n
\t       499<\/span><\/p>\n
\t       (3)  Without  prejudice\tto  the\t  provisions
\n\t      contained\t in the foregoing  sub-sections\t and
\n\t      section  thereto,\t section  7  of\t the  Bombay
\n\t      General  Clauses\tAct, 1904,  shall  apply  in
\n\t      relation\tto  the repeal of any  of  the\tlaws
\n\t      referred\tto  in section 76 as if the  law  so
\n\t      repealed\thad  been an  enactment\t within\t the
\n\t      meaning of section 7 of that Act.”\n<\/p><\/blockquote>\n
(We have only quoted the portions of s. 77 with which we are
\nconcerned).\n<\/p>\n
The  effect  of\t s. 77 (1)(a) is to continue  in  force\t the
\nBombay Sales Tax Act of 1953 as well as the Bombay Sales Tax
\nAct  of 1946 to the extent to which they were in force\twhen
\nthis Act of 1959 came into force for the purposes  mentioned
\nin  that clause.  These purposes included levy,\t assessment,
\nreassessment  and  collection  of  sales-tax,  so  that\t the
\nproceedings against the appellant, which had been  initiated
\nunder  the  Act\t of 1946, continued to be  governed  by\t the
\nprovisions  of\tthat Act.  Section 7 of the  Bombay  General
\nClauses\t Act  1 of 1904, which was made\t applicable  ‘by  s.
\n77(3)  to  the\trepeal\tof the Act  of\t1953,  includes\t the
\nfollowing provisions : –\n<\/p>\n
\t       ” Where this Act, or any Bombay Act, or Maha-
\n\t      rashtra  Act, made after the  commencement  of
\n\t      this Act, repeals any enactment hitherto\tmade
\n\t      or  hereafter  to\t be  made,  then,  unless  a
\n\t      different intention appears, the repeal  shall
\n\t      not-\n<\/p><\/blockquote>\n
\t       (c)  affect any right, privilege,  obligation
\n\t      or  liability  acquired, accrued\tor  incurred
\n\t      under any enactment so repealed; or\n<\/p><\/blockquote>\n
\t       (e)  affect    any    investigation,    legal
\n\t      proceeding  or remedy in respect of  any\tsuch
\n\t      right,   privilege,   obligation,\t  liability,
\n\t      penalty,\t  forfeiture   or   punishment\t  as
\n\t      aforesaid,  and any such investigation,  legal
\n\t      proceeding   or  remedy  may  be\t instituted,
\n\t      continued\t or enforced, and any such  penalty,
\n\t      forfeiture or punishment may be imposed, as if
\n\t      the repealing Act had not been passed.”\n<\/p><\/blockquote>\n
Very  clearly, the repeal of the Act of 1953 by the  Act  of
\n1959  did  not\taffect the rights  and\tliabilities  of\t the
\nassessee to tax under the Act of 1953 or the Act of 1946  in
\nrespect\t of  the turnover which became liable  to  sales-tax
\nunder the Act of 1946.\tThe effect of clause (e) of s. 7  of
\nthe Bombay General Clauses Act
\n500<\/span>
\nfurther\t is  that any legal proceeding in respect  of  levy,
\nimposition  or recovery of that tax is to continue  and\t any
\nfresh  investigation,  legal proceeding or remedy  could  be
\ninstituted  as\tif there had been no repeal by\tthe  Act  of
\n1959.\tConsequently, the repeal of the Act of 1953 did\t not
\nin  any way affect the power of the Deputy  Commissioner  to
\ninstitute  proceedings\tfor revision suo  motu\tagainst\t the
\nappellate  order of the Assistant Collector which  had\tbeen
\npassed in exercise of his powers under the Act of 1946.\t  It
\nis true, as urged by Mr. Desai in the alternative, that,  in
\nfact, the proceedings should have been taken not under S. 31
\nof  the\t Act of 1953, but under S. 22 of the  Act  of  1946.
\nThis is so, because when the Act of 1946 was repealed by the
\nAct of 1953, similar provisions were made in the Act of 1953
\nto  continue in force the provisions of the Act of  1946  in
\nrespect of rights and liabilities which may have accrued  or
\nhave been incurred under the Act of 1946.  Section 48(2) and
\nS.  49(1) clearly contained provisions indicating  that,  in
\nrespect\t of  a liability to tax under the Act of  1946,\t the
\nrights and liabilities of the assessee had to be  determined
\nin accordance with the provisions of the Act of 1946 and all
\nlegal proceedings or remedies in respect thereof had also to
\nbe  taken  under  the same Act.\t  Consequently,\t the  Deputy
\nCommissioner,  in  seeking  to\texercise  revisional  powers
\nagainst\t the order of the Assistant Collector  passed  under
\nthe  Act of 1946, had to proceed under S. 22 of the  Act  of
\n1946.\tThat, however, is not at all material,\tbecause\t the
\nprovisions of S. 22 of the Act of 1946 are quite similar  to
\nthose  of  s.  31 of the Act of 1953.\tThe  mere  incorrect
\nmention\t of  S.\t 31  of the Act of 1953\t in  the  notice  is
\nimmaterial.   The Deputy Commissioner has  the\tjurisdiction
\nand power to revise the order under S. 22 of the Act of 1946
\nand,  consequently the proceedings initiated by him are\t not
\nwithout jurisdiction.\n<\/p>\n
The  last  submission made by Mr. Desai was that, if  it  be
\nheld  that the revisional powers are sought to be  exercised
\nunder  the  Act\t of  1946,  it\tshould\tbe  held  that\t the
\nproceedings  sought  to be instituted are  barred  by  time,
\nbecause\t limitation of a reasonable time, within  which\t the
\nrevisional  powers are to be exercised, must be\t implied  in
\nthe statute itself.  Section 22 of the Act of 1946 and s. 31
\nof  the\t Act  of 1953 do not lay  down\tany  limitation\t for
\nexercise  of the power of revision by a Deputy\tCommissioner
\nsue  motu, and we are not prepared to accept that  any\tsuch
\nlimitation  must  be necessarily read in the two  Acts.\t  In
\nsupport\t of his proposition that such a limitation  must  be
\nread by us, Mr. Desai referred to the decision of this Court
\nin  the State of Orissa v. Debaki Debi and Others<\/a>(1).\tThat
\ncase,  however,\t has no relevance at all,  because,  in\t the
\nOrissa\tSales Tax Act, there was a proviso in general  terms
\nlaying down that no order “assessing the
\n(1)  15 S.T.C. 153.\n<\/p>\n
501<\/span><\/p>\n
amount\tof tax shall be passed after the lapse of 36  months
\nfrom  the expiry of the period”, and it was held  that\tthis
\nprovision  was,\t in  substance, not a real  proviso  to\t the
\nsection\t in which it was placed, but was, in fact, a  period
\nof  limitation prescribed for all orders of assessment\tmade
\nunder  any other provision of the Act.\tIn the Bombay  Sales
\nTax  Acts  of  1946  and 1953,\tthere  is  no  such  general
\nprovision  prescribing a period of limitation for making  an
\nassessment  and, even though the effect of the order of\t the
\nDy.   Commissioner passed in revision may be to bring  about
\nan assessment to tax of turnover which was set aside by\t the
\nAssistant Collector in appeal., such an assessment does\t not
\ncome under any provision relating to limitation.
\nThe  decision  of the Bombay High Court in  Commissioner  of
\nIncome-tax, Bombay City 1 v. Narsee Nagsee & Co. (1) is also
\nsimilarly  inapplicable.   In that case, section 11  of\t the
\nBusiness  Profits  Tax Act, 1947, which\t had  no  limitation
\nprescribed  for\t an  order of assessment,  was\theld  to  be
\ngoverned  by  the 4 years’ period of  limitation  which\t was
\nprescribed   under  s.\t14  for\t issue\tof  a\tnotice\t for
\nreassessment.  The decision in that case turned on the\tfact
\nthat,  if proceeding for reassessment could not\t be  started
\nafter  the  expiry  of\tfour  years  from  the\tend  of\t the
\nchargeable accounting period concerned, it would be  totally
\nunreasonable to hold that the first assessment of tax can be
\nmade  after the expiry of that period.\tThe case  before  us
\nrelates\t to exercise of revisional powers and does not\tdeal
\nwith  the question of the first assessment to be  made\twhen
\nthe Return is initially filed by an assessee.  In fact, when
\na  revisional  power is to be exercised, we think  that\t the
\nonly limitations, to which that power is subject, are  those
\nindicated  by this Court in K. M. Cheria Abdulla  &  Co’s(2)
\ncase.\tThese  limitations are that the\t revising  authority
\nshould\tnot  trench  upon the  powers  which  are  expressly
\nreserved by the Acts or by the Rules to other authority\t and
\nshould\tnot ignore the limitations inherent in the  exercise
\nof   those  powers.   In  the  present\tcase,\tthe   Deputy
\nCommissioner,  when  seeking  to  exercise  his\t  revisional
\npowers, is clearly not encroaching upon the powers  reserved
\nto  other  authorities.\t Under the Act of  1946,  the  first
\nassessment is made by the Sales-Tax Officer under S. 11.  If
\ninformation  comes into his possession that any turnover  in
\nrespect of sales or supplies of any goods chargeable to\t tax
\nhas  escaped  assessment  in any year  or  has\tbeen  under-
\nassessed or assessed at a lower rate or any deductions\thave
\nbeen wrongly made therefrom, proceedings can be taken afresh
\nunder  S.  11A.\t On the face of it, if\ta  first  assessment
\norder  is  made\t under\ts.  11\tand  any  turnover   escapes
\nassessment, the appropriate provision, under which action is
\nto  be taken for assessing that turnover to tax, is S.\t11A.
\nThere  is, however, no provision under which the  power\t now
\nsought to be exercised by
\n(1) 31 I.T.R. 164.\n<\/p>\n
(2) [1965] 1 S.C.R. 601.\n<\/p>\n
502<\/span><\/p>\n
the  Deputy  Commissioner in the case before us\t could\thave
\nbeen exercised by any other authority.\tIn this case, as  we
\nhave indicated earlier, the first assessment of tax was made
\nby  the Sales Tax Officer, and the turnover now in  question
\nwas  assessed  to tax by him.  Having  once  assessed-\tthat
\nturnover  to tax, he could .not initiate a fresh  proceeding
\nin respect of it under s. 11A.\tThe ,assessment made by\t him
\nwas set aside in appeal by the Assistant Collector and it is
\nthis order of the Assistant Collector which is sought to  be
\nrevised by the Deputy Commissioner.  This is, therefore, not
\na case where the powers are being exercised for the  purpose
\nof  assessing or reassessing an escaped turnover.  The\tcase
\nis  one\t where\tthe  revisional\t powers\t are  sought  to  be
\nexercised  to correct what appears to be an incorrect  order
\npassed in appeal by the Assistant Collector, and, for such a
\npurpose,  proceedings  could not possibly  have\t been  taken
\nunder\ts.  11A.   In  exercising  his\trevisional   powers,
\ntherefore,  the Deputy Commissioner is not encroaching\tupon
\nthe jurisdiction of any other authority specially  entrusted
\nwith taking such proceedings.\n<\/p>\n
In  this connection, Mr. Desai relied on a decision  of\t the
\nBombay\tHigh  Court in Manordas Kalidas v. V.  V.  Tatke(1).
\nThe  decision in that case also related to this very Act  of
\n1946, but the point to be kept in view is that in that case,
\nthe  revisional power was sought to be exercised in  respect
\nof  the\t original assessment order passed by the  Sales\t Tax
\nOfficer\t  under\t S.  11\t of  the  Act.\t It  was  in   these
\ncircumstances that the Bombay High Court, after referring to
\nits two decisions in Bisesar House v. State of Bombay (2 and
\nCommr. of Income-tax v. Narsee Nagsee & Co.<\/a> held :-\n<\/p>\n
\t       ,,In  neither of those two cases,  revisional
\n\t      powers  were sought to be exercised,  but\t the
\n\t      principle\t  of  those  cases  must,   in\t our
\n\t      judgment,\t apply for the same reasons  to\t the
\n\t      exercise of revisional jurisdiction, and\tthat
\n\t\t\t    jurisdiction   must\t be  exercised\t w
\nithin\ta
\n\t      reasonable  period,  and\tthe  yard-stick\t  of
\n\t      reasonableness  will be the period  prescribed
\n\t      for re-assessment.”\n<\/p><\/blockquote>\n
It appears that in view of the fact that proceedings for re-
\nassessment  could have been taken under s. 11A in that\tcase
\nand, instead, revisional powers were sought to be exercised,
\nthat Court held that the exercise of such revisional  powers
\nmust  be, governed by the same limitation which\t applied  to
\nthe exercise of power of reassessment.\tIn fact, the correct
\nprinciple that should have been applied in that case is\t the
\nprinciple mentioned by us earlier laid down in K. M.  Cheria
\nAbdulla\t & Co.(4). The revision should have been held to  be
\nincompetent on the ground that the power
\n(1) 11 S.T.C. 87.\t\t(2) 9 S.T.C. 654.\n<\/p>\n
(3) 31 I.T. R. 164.\t      (4) [1965] 1 S.C.R. 601.\n<\/p>\n
 503<\/span><\/p>\n
was  sought  to\t be  exercised\tfor  assessment\t of  escaped
\nturnover which had not ‘been assessed at all at the  initial
\nstage  of -assessment under s. 11 and proceedings  under  s.
\n11A could have been competently initiated for bringing\tthat
\nturnover to tax.  Instead, the Court equated the  proceeding
\nin revision with the proceeding for reassessment and applied
\nthe  4-year period of limitation which was  prescribed\tonly
\nfor  reassessment and not for exercise of revisional  power.
\nIn  our\t opinion,  the ultimate decision in  that  case\t was
\nperfectly  correct, but we are unable to affirm\t the  vie,%,
\nthat  the  revisional  power is governed by  any  period  of
\nlimitation   laid  down\t in  s.\t 11A  for  proceedings\t for
\nreassessment of escaped turn over.\n<\/p>\n
Reference,  in this connection, was also made to a  decision
\nof  this Court in Maharaj Kumar Kamal Singh v.\tCommissioner
\nof Income-tax, Bihar and Orissa<\/a>(1), in which the Court dealt
\nwith a case of an assessee whose income to the extent of Rs.
\n93,604\/representing interest on arrears of rent was  omitted
\nto  be\tbrought\t to assessment by  the\tIncome-tax  Officer.
\nSubsequently,  in another case, the Privy Council held\tthat
\ninterest   on  arrears\tof  rent  payable  in\trespect\t  of
\nagricultural   land   was  not\tagricultural   income\tand,
\nconsequently, the Income-tax Officer initiated\treassessment
\nproceedings  under s. 34(1) (b) of the Income-tax Act.\t The
\ncircumstance   relied  upon  by\t learned  counsel  for\t the
\nappellant was that the omission by the Income-tax Officer to
\nbring to assessment that interest was part of an order\tmade
\nby him after his initial assessment order had been set aside
\nby the Appellate Assistant Commissioner who directed a fresh
\nassessment, allowing the appeal against that order.  In that
\ncase,  it was held that the escaped income could be  brought
\nto tax under s. 34 of the Income Tax Act; and, on the  basis
\nof  this  decision,  it was urged that,\t similarly,  in\t the
\npresent\t case, the turnover now sought to be brought to\t tax
\nin exercise of revisional powers could be re-assessed  under
\ns.  11A.   This argument ignores the circumstance  that,  in
\nthat  case,  the  last order, under which  the\tincome\tfrom
\ninterest  had been exempted from tax, was an order  made  by
\nthe Income Tax Officer himself, though after the  assessment
\nproceedings  had  been\tremanded to  him  by  the  Appellate
\nAssistant  Commissioner.   Since  the  income  had   escaped
\nassessment  under an order passed by the Income-tax  Officer
\nhimself, he could competently take proceedings under section\n<\/p>\n
34.  In the case before us, the turnover of the assessee now
\nsought\tto  be taxed in the revisional proceedings  did\t not
\nescape\tliability to tax under the orders of  the  Sales-tax
\nOfficer\t and, on the other hand, was actually taxed by\thim,
\nwhich\timposition   of\t tax  was  set\taside\tin   appeal.
\nConsequently, the Sales Tax Officer could not possibly\ttake
\nproceedings under s. II A in respect of that turnover.
\n(1)  35 I.T.R. 1.\n<\/p>\n
504<\/span><\/p>\n
For these reasons, we hold that the proceedings initiated by
\nthe  Deputy Commissioner of Sales Tax against the  appellant
\nare not incompetent and the High Court was right in refusing
\nthe  writ sought by the appellant.  The appeal fails and  is
\ndismissed with costs.\n<\/p>\n
R.K.P.S.\t\t\t       Appeal dismissed.\nL1Sup.Cl\/68 -15-10-68-GIPF.-\n505<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Swastik Oil Mills Ltd vs H. B. Munshi, Deputy Commissioner … on 29 November, 1967 Equivalent citations: 1968 AIR 843, 1968 SCR (2) 492 Author: V Bhargava Bench: Bhargava, Vishishtha PETITIONER: SWASTIK OIL MILLS LTD. Vs. RESPONDENT: H. B. MUNSHI, DEPUTY COMMISSIONER OF SALES TAX,BOMBAY DATE OF JUDGMENT: 29\/11\/1967 BENCH: BHARGAVA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-128427","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSwastik Oil Mills Ltd vs H. B. 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