{"id":220512,"date":"2011-08-10T00:00:00","date_gmt":"2011-08-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-ors-etc-vs-ms-shivam-coke-industries-on-10-august-2011"},"modified":"2017-03-25T15:32:03","modified_gmt":"2017-03-25T10:02:03","slug":"state-of-jharkhand-ors-etc-vs-ms-shivam-coke-industries-on-10-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-ors-etc-vs-ms-shivam-coke-industries-on-10-august-2011","title":{"rendered":"State Of Jharkhand & Ors.Etc vs M\/S Shivam Coke Industries … on 10 August, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Jharkhand & Ors.Etc vs M\/S Shivam Coke Industries … on 10 August, 2011<\/div>\n
Author: . M Sharma<\/div>\n
Bench: Mukundakam Sharma, Anil R. Dave<\/div>\n
                                                                             REPORTABLE\n\n\n                          IN THE SUPREME COURT OF INDIA\n\n                           CIVIL APPELLATE JURISDICTION\n\n\n\n                    CIVIL APPEAL NOS.  6889-6891 OF 2011\n\n                [Arising out of SLP (C) Nos. 19104-19106 of 2008]\n\n\n\nState of Jharkhand & Ors. Etc.                          .... Appellants\n\n\n\n\n                                      Versus\n\n\n\n\nM\/s. Shivam Coke Industries, Dhanbad, Etc.               .... Respondents\n\n\n\n                                       With\n\n\n\n                           CIVIL APPEAL NO. 6892 OF 2011\n\n                    [Arising out of SLP (C) No. 21491 of 2008]\n\n\n\n                                       With\n\n\n\n                           CIVIL APPEAL NO. 6893 OF 2011\n\n                     [Arising out of SLP (C) No. 8424 of 2010]\n\n\n\n\n                                    JUDGMENT\n<\/pre>\n
Dr. MUKUNDAKAM SHARMA, J.\n<\/p>\n
1.    Delay condoned in SLP (C) No. 8424 of 2010.\n<\/p>\n
2.      Leave granted.\n<\/p>\n
By   this   common   judgment   and   order,   we   propose   to   dispose   of   these <\/p>\n
appeals   as   they   involve   similar   issues   both   of   facts   as   also   of   law   and <\/p>\n
therefore, they were heard together.\n<\/p>\n
3.    Appeals   arising   out   of  SLP   (Civil)   Nos.   19104-19106   of   2008   are <\/p>\n
directed   against   the   judgment   and   order   dated   14.3.2008   in   WP   (T)   No. <\/p>\n
6377 of 2007, WP (T) No. 5895 of 2007 and WP (T) No. 5892 of 2007. The <\/p>\n
appeal arising out of SLP (Civil) No. 21491 of 2008 is directed against the <\/p>\n
judgment and order dated 19.3.2008 in WP (T) No. 6071 of 2007 and the <\/p>\n
appeal arising out of SLP (Civil) No. 8424 of 2010 is directed against the <\/p>\n
judgment and order dated 31.7.2009 in W.P. (T) 54 of 2009 passed by the <\/p>\n
High Court of Jharkhand at Ranchi allowing all the Writ Petitions filed by <\/p>\n
the respondents herein.\n<\/p>\n
CIVIL APPEAL ARISING OUT OF SLP (C) NO. 19104 OF 2008<\/p>\n
4.    The facts leading to the filing of the case in the appeal arising out of <\/p>\n
SLP   (C)   No.   19104   of   2008   are   that   the   respondent-M\/s   Shivam   Coke <\/p>\n
Industries, Dhanbad is a manufacturer of coal and was registered under <\/p>\n
the   provisions   of   the   Bihar   Finance   Act,   1981   [now   repealed   –   for   short <\/p>\n
“BFT Act, 1981”] and presently under the provisions of Jharkhand Value <\/p>\n
Added Tax, 2005. Respondent-assessee being manufacturers of hard coke <\/p>\n
buys coal from Bharat Coking Coal Ltd. after making the payment of local <\/p>\n
Sales   Tax   @   4%   which   is   being   used   as   an   input   for   the   purpose   of <\/p>\n
manufacturing   the   hard   coke.    Respondent   was   assessed   to   tax   for   the <\/p>\n
Financial   Years   1988-89,   1992-93   and   1996-97   determining   the   tax   on <\/p>\n
intra-State sales transactions as well as Central Sales Tax on inter-State <\/p>\n
sales   transactions.   Respondent   preferred   an   Appeal   before   the   Joint <\/p>\n
Commissioner   of   Commercial   Taxes   (Appeals),   Dhanbad   Division, <\/p>\n
Dhanbad   against   the   assessment   orders   passed   between   26.4.1990   to <\/p>\n
23.12.1998 for the Financial  Years 1988-89, 1992-93 and 1996-97, who <\/p>\n
vide   order   dated   25.08.2003   remanded   the   aforesaid   assessment <\/p>\n
proceedings by a common order to re-examine the books of account and <\/p>\n
to re-determine the nature of sales as to whether they are intra-state sales <\/p>\n
or   inter-state   sales,   on   the   basis   of   the   books   of   account   and   the   audit <\/p>\n
reports   as   well   as   on   the   basis   and   within   the   meaning   and   scope   of <\/p>\n
Section 3(a) of the Central Sales Tax Act, 1956 (for short “the CST Act”).\n<\/p>\n
Thereafter,   Deputy   Commissioner   of   Commercial   Taxes,   Dhanbad   Circle <\/p>\n
on   the   basis   of   guidelines   issued   by   the   Joint   Commissioner   of <\/p>\n
Commercial   Taxes   (Appeals)   passed   the   revised   assessment   orders   on <\/p>\n
26.12.2003 reversing the then inter-State sales under Section 3(a) of the <\/p>\n
CST  Act  1956  into  the  intra-State  sales.     Respondent   on  10.3.2005  filed <\/p>\n
an application for refund of excess amount of tax after adjustment of the <\/p>\n
amount to be paid by Respondent. Accordingly, on 21.8.2006 notice was <\/p>\n
issued   by   Deputy   Commissioner   of   Commercial   Taxes   to   Respondent   to <\/p>\n
file   its   refund   application   before   the   Joint   Commissioner   of   Commercial <\/p>\n
Taxes   since   the   amount   refundable   to   the   Respondent   is   above   Rs.\n<\/p>\n
25,000\/-.     Thereafter   in   the   year   2006,   as   is   alleged  by   the   respondent, <\/p>\n
the Deputy Commissioner of the Dhanbad Circle got changed and the new <\/p>\n
Deputy   Commissioner   examined   the   revised   assessment   orders   of   the <\/p>\n
Respondent   and   he   opined   that   the   revised   assessment   orders   do   not <\/p>\n
conform to the appellate direction and Deputy Commissioner informed the <\/p>\n
Joint   Commissioner   of   Commercial   Taxes   (Administration)   about   his <\/p>\n
observations.   The   Joint   Commissioner   of   Commercial   Taxes <\/p>\n
(Administration),   Dhanbad   Division,   Dhanbad   [Appellant   No.   4]   then <\/p>\n
initiated   the   proceeding  suo   motu  under   Section   46(4)   of   the   adopted <\/p>\n
Bihar Finance Act, 1981 [now repealed] and issued notice\/Memo No. 744 <\/p>\n
dated   1.8.2007   directing   the   Respondent   to   furnish   the   complete   sets  of <\/p>\n
books   of   account   in   order   to   determine   the   legality   and   propriety   of   the <\/p>\n
said   revised   assessment   orders   conforming   to   the   appellate   order.   On <\/p>\n
28.11.2007   Respondent   filed   Writ   Petition   before   the   High   Court   of <\/p>\n
Jharkhand which was registered as WP (T) No. 6377 of 2007 praying for a <\/p>\n
direction to quash the notice\/Memo No. 883 dated 20.9.2007 [which was <\/p>\n
issued   in   pursuance   to   earlier   notice\/Memo   No.   744   dated   1.8.2007] <\/p>\n
issued   by   the   Joint   Commissioner   of   Commercial   Taxes   (Administration) <\/p>\n
for initiating the proceeding  suo motu  under Section 46(4) of the repealed <\/p>\n
BFT Act, 1981 and also for quashing the order dated 26.11.2007 passed <\/p>\n
by the Joint Commissioner of Commercial Taxes by which he set aside the <\/p>\n
revised assessment order dated 26.12.2003. The High Court of Jharkhand <\/p>\n
vide   its   order   dated   14.03.2008   allowed   the   Writ   Petitions   of   the <\/p>\n
respondent   herein   against   which   the   appellants   have   filed   the   present <\/p>\n
appeals on which we heard the learned counsel appearing for the parties.\n<\/p>\n
CIVIL APPEALS ARISING OUT OF SLP (C) NOS. 19105-06 OF 2008<\/p>\n
5.    The  facts  leading to the filing of appeals arising out of SLP (C) Nos.\n<\/p>\n
19105-06   of   2008   are   that   the   Respondent   -M\/s.   Rani   Sati   Coke <\/p>\n
Manufacturing Company, Baliyapur, Dhanbad is engaged in processing of <\/p>\n
coal to coke and was assessed to tax for the Financial Years from 1984-85 <\/p>\n
to  2000-2001  determining the tax  on “intra-State sales”  transactions,  as <\/p>\n
well   as   Central   Sales   Tax   on   inter-State   sales   transactions.   Respondent <\/p>\n
filed an appeal against the assessment orders passed between 29.12.1987 <\/p>\n
to   10.3.2003   for   the   Financial   Years   from   1984-85   to   2000-01   and   the <\/p>\n
appellate   authority,   i.e.,   the   Joint   Commissioner   of   Commercial   Taxes <\/p>\n
(Appeal), Dhanbad Division, Dhanbad remanded the aforesaid assessment <\/p>\n
proceedings   by   a   common   order   to   re-examine   the   nature   of   intra-State <\/p>\n
sales and inter-State sales on the basis of the books  of account and the <\/p>\n
audit reports as well as on the basis of the meaning and scope of Section <\/p>\n
3(a)   of   the   CST   Act,   1956.   Thereafter,   the   Deputy   Commissioner   of <\/p>\n
Commercial Taxes  passed the revised assessment order vide orders dated <\/p>\n
14.12.2005   and   29.12.2005   reversing   \/   converting   the   then   inter-State <\/p>\n
sales  under  Section  3(a)  of  the  CST   Act,  1956   into the   intra-State   sales.\n<\/p>\n
Pursuant   thereto,   Respondent   filed   prescribed   refund   application   before <\/p>\n
the   Deputy   Commissioner   of   Commercial   Taxes.   Thereafter   in   the   year <\/p>\n
2006, it is alleged by the respondents that, the Deputy Commissioner  of <\/p>\n
the   Dhanbad   Circle   got   changed   and   the   new   Deputy   Commissioner <\/p>\n
examined the revised assessment orders of the Respondent and he opined <\/p>\n
that   the   revised   assessment   orders   do   not   conform   to   the   appellate <\/p>\n
direction and as such do not have any merit as they were re-assessed on <\/p>\n
the basis  of same facts  for  converting  the then  inter-State  sales into  the <\/p>\n
intra-State   sales,   which   resulted   the   claim   of   refund   and   Deputy <\/p>\n
Commissioner   informed   the   Joint   Commissioner   of   Commercial   Taxes <\/p>\n
(Administration)   about   his   observations.   Pursuant   to   this   Joint <\/p>\n
Commissioner   of   Commercial   Taxes   (Administration)   initiated   the <\/p>\n
proceeding  suo motu  under Section 46(4) of the Bihar Finance Act, 1981 <\/p>\n
and   issued   notice   No.   850   dated   06.09.2007   directing   Respondent   to <\/p>\n
furnish the complete sets of  books of  account,  in order to  determine the <\/p>\n
legality and propriety of the said revised assessment orders conforming to <\/p>\n
the appellate order. Thereafter, Respondent No. 2 filed two Writ Petitions <\/p>\n
before the High Court of Jharkhand which were registered as W.P. (T) Nos.\n<\/p>\n
5892   and   5895   of   2007   praying   for   the   direction   to   the   appellants   for <\/p>\n
immediate   refund   of   the   entire   amount   arising   out   of   the   revised <\/p>\n
assessment   orders   in   which   High   Court   directed   the   appellants   to <\/p>\n
participate   in   revision   proceedings,   after   which   Respondent   filed   an <\/p>\n
amended   petition   before   the   High   Court   by   bringing   the   fact   that   the <\/p>\n
revision  proceedings  under   Section   46(4)  of the  Bihar  Finance   Act,  1981 <\/p>\n
was   opened   on   the   basis   of   an   application   of   the   Deputy   Commissioner <\/p>\n
which is not permitted as per the provisions of the repealed BFT Act, 1981 <\/p>\n
and   that   the   same   is   also   barred   by   limitation.   The   High   Court   of <\/p>\n
Jharkhand   vide   its   order   dated  14.03.2008   allowed   the   Writ   Petitions   of <\/p>\n
the   respondents   herein   against   which   the   appellants   have   filed   the <\/p>\n
present appeals on which we heard the learned counsel appearing for the <\/p>\n
parties.\n<\/p>\n
CIVIL   APPEALS   ARISING   OUT   OF   SLP   (C)   NO.   21491   AND   8424   OF <\/p>\n
2008<\/span><\/p>\n
6.    The appeals arising out of SLP(C) No. 21491 of 2008 are against the <\/p>\n
judgment   and   order   of   the   High   Court   of   Jharkhand   dated   19.03.2008 <\/p>\n
following   the   judgment   in   WP   (T)   NO.   6377   of   2007.       The   facts   of   this <\/p>\n
appeal and also of the appeal arising out of SLP (C) No. 8424 of 2010 are <\/p>\n
similar to the other appeals at hand. So, we need not go into the detailed <\/p>\n
facts of the said two appeals.\n<\/p>\n
7.    The   learned   counsel   appearing   for   the   appellant   while   taking   us   to <\/p>\n
the   impugned   judgment   and   also   the   connected   records   submitted   that <\/p>\n
judgment   and   order   passed   by   the   High   Court   is   incorrect.   He   further <\/p>\n
submitted   that   the   findings   arrived   at   by   the   High   Court   are   erroneous <\/p>\n
and based on wrong readings of the materials available on record.\n<\/p>\n
8.    The   learned   counsel   appearing   for   the   respondents   on   the   other <\/p>\n
hand   while   drawing   support   from   the   impugned   judgment   and   order <\/p>\n
submitted that the findings recorded by the High Court are findings of fact <\/p>\n
and   therefore   this   Court   should   not   interfere   with   the   aforesaid <\/p>\n
conclusions of fact arrived at by the High Court by giving cogent reasons <\/p>\n
for its conclusions.\n<\/p>\n
9.       Upon reading the entire records and materials placed and also upon <\/p>\n
hearing   the  learned   counsel   appearing  for   the   parties,   in  our  considered <\/p>\n
opinion three following issues appear to arise for our consideration;\n<\/p>\n
      a) Whether   the  suo motu power  of revision under  Section  46(4)  of the <\/p>\n
         BFT Act, 1981, vested with the Joint Commissioner was legally and <\/p>\n
         properly exercised in the present case;\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      b) Whether   or   not   the   action   taken   by   the   Department   was  barred   by <\/p>\n
         limitation   and   whether   such   action   was   bad   for   not   having   been <\/p>\n
         initiated within a reasonable time;\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      c) Whether   the   order   dated   26.11.2007   passed   by   the   Joint <\/p>\n
         Commissioner   setting   aside   the   revised   assessment   order   dated <\/p>\n
         26.12.2003 is proper and could be maintained;<\/p>\n<\/blockquote>\n
10.      We propose to deal with the aforesaid three issues one after the other <\/p>\n
and record our reasons for coming to the decision in each of the aforesaid <\/p>\n
issues;\n<\/p>\n
Issue 1: Whether exercise of Suo Motu power of revision as provided <\/p>\n
under Section 46(4) of the BFT Act, 1981 could be upheld;\n<\/p>\n
11.    Section 46 of the BFT Act, 1981 with which we are concerned in the <\/p>\n
present   case   came   to   the   statute   book   with   the   enactment   of   Bihar <\/p>\n
Finance   Act,   1981.   The   aforesaid   Act   was   a   consolidated   Act   which   was <\/p>\n
passed by the State Legislature amending the law relating to levy of tax on <\/p>\n
sale and purchase of goods.   In the said Act, Section 45 provides for the <\/p>\n
provision of filing an appeal whereas Section 46 of the Act lays down the <\/p>\n
provision of revision.  In the present case, we are only concerned with the <\/p>\n
provision of revision and in our estimation, the entire provision of Section <\/p>\n
46 should be extracted hereinafter.\n<\/p>\n
       46.   Revision  – (1)   Subject to such rules as may be made by <\/p>\n
       the State Government an order passed on an appeal under sub-\n<\/p>\n
       section   (1)   or  (2)   of   section   45  may,   on  application,   be   revised <\/p>\n
       by the Tribunal.\n<\/p>\n
       (2)     Subject   as   aforesaid   any   order   passed   under   this   part   or <\/p>\n
       the rules made thereunder, other than an order passed by the <\/p>\n
       Commissioner   under   sub-section   (5)   of   section   9   or   an   order <\/p>\n
       against which an appeal has been provided in section 45 may, <\/p>\n
       on application be revised.\n<\/p>\n
            (a)   by the Joint Commissioner,  if  the said  order  has been <\/p>\n
            passed   by   an   authority   not   above   the   rank   of   Deputy <\/p>\n
            Commissioner; and<\/p>\n
            (b)     by the Tribunal, if the said order has been passed by <\/p>\n
            the Joint Commissioner or Commissioner.\n<\/p>\n
       (3)     Every   application   for   revision   under   this   section   shall   be <\/p>\n
       filed   within   ninety   days   of   the   communication   of   the   order <\/p>\n
       which is sought to be revised, but where the authority to whom <\/p>\n
       the application lies is satisfied that the applicant had sufficient <\/p>\n
       cause for not applying within time, it may condone the delay.\n<\/p>\n
       (4)   The   Commissioner   may,   on   his   own   motion   call   for   an <\/p>\n
       examine the records of any proceeding in which any order has <\/p>\n
       been passed by any other authority appointed under section 9, <\/p>\n
       for   the   purpose   of   satisfying   himself   as   to   the   legality   or <\/p>\n
       propriety   of   such   order   and   may,   after   examining   the   record <\/p>\n
       and   making   or   causing   to   be   made   such   enquiry   as   he   may <\/p>\n
       deem necessary, pass such order as he thinks proper.\n<\/p>\n
       (5)   No order under this section shall be passed without giving <\/p>\n
       the appellant as also the authority whose order is sought to be <\/p>\n
       revised   or   their   representative,   a   reasonable   opportunity   of <\/p>\n
       being heard.\n<\/p>\n
       (6)     Any   revision   against   an   appellate   order   filed   and   pending <\/p>\n
       before  the  Joint  Commissioner   or a  revision  against  any  other <\/p>\n
       order filed and pending before the Deputy Commissioner since <\/p>\n
       before   the   enforcement   of   this   part   shall   be   deemed   to   have <\/p>\n
       been   filed   and\/or   transferred   respectively   to   the   Tribunal   and <\/p>\n
       Joint Commissioner; and any revision relating to a period prior <\/p>\n
       to   the   enforcement   of   this   part   against   an   appellate   order,   or <\/p>\n
       against   any   other   order   passed   by   an   authority   not   above   the <\/p>\n
       rank   of   Deputy   Commissioner   shall,   after   the   enforcement   of <\/p>\n
       this part, be respectively filed before the Tribunal and the Joint <\/p>\n
       Commissioner.\n<\/p>\n
12.    The said Act came to be amended in 1984.   Section 10 of the Bihar <\/p>\n
Finance   Amendment   Act,   1984   amended   Section   46   in   some   respect <\/p>\n
which again is extracted hereinbelow:-\n<\/p>\n
        10.    Amendment of section  46 of the  Bihar  Act V, 1981 (Part  <\/p>\n
               I).  –  In  sub-section  (3) of section 46  of the  said  Act  for <\/p>\n
               the word “sixty” the word “ninety” shall be substituted.<\/p>\n
        (2)   For   sub-section   (4)   the   following   sub-section   shall   be <\/p>\n
          substituted namely :-\n<\/p><\/blockquote>\n
\n
        “4 (a) The Commissioner may, on his own motion call for and <\/p>\n
          examine  the  records of any proceeding  in which  any order <\/p>\n
          has   been   passed   by   any   other   authority   appointed   under <\/p>\n
          section   9,   for   the   purpose   of   satisfying   himself   as   to   the <\/p>\n
          legality or property of such order and may, after examining <\/p>\n
          the record and making or causing to be made such enquiry <\/p>\n
          as   he   may   deem   necessary,   pass   such   order   as   he   thinks <\/p>\n
          proper.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
13.    By   inserting   a   provision   namely   Section   7   of   the   Bihar   Finance <\/p>\n
(Amendment)   Ordinance,   1989,   clause   (b)   of   sub-Section   (4)   has   been <\/p>\n
deleted with effect from May, 1989. Therefore, the statutory provision that <\/p>\n
now stands and is operative is that Section 46 provides for a revision of all <\/p>\n
appellate   and   other   orders   passed   by   various   authorities   under   the   BFT <\/p>\n
Act,   1981.     According   to   the   statutory   provision   as   applicable,   power   of <\/p>\n
revision   is   vested   with   the   Tribunal   and   the   Joint   Commissioner,   which <\/p>\n
power   is   to   be   exercised   on   application   by   any   person   aggrieved,   but <\/p>\n
subject   to   time   limit   prescribed   in   sub-Section   (3)   i.e.   90   days   of   the <\/p>\n
communication of the order with a further power to condone the delay, if <\/p>\n
sufficient   cause   is   shown.       There   is   an   additional   power   vested   on   the <\/p>\n
Commissioner   which   empowers   the   Commissioner   to   initiate   suo   motu <\/p>\n
revision   proceedings   at   any   time   and   for   exercising   such   power   no <\/p>\n
limitation   has   been   prescribed   in   the   statute.     The   power   of   the <\/p>\n
Commissioner   to   initiate   such   suo   motu   revisional   proceeding   has   been <\/p>\n
delegated   to   the   Joint   Commissioner   of   Commercial   Taxes <\/p>\n
(Administration)   against   the   orders   of   the   officers   lower   than   his   rank <\/p>\n
which   is   so   delegated   in   terms   of   the   notification   issued   by   the   State   of <\/p>\n
Bihar under S.O. No. 795 dated 28th June 1986.\n<\/p>\n
14.    It is thus established that under Section 46 of the BFT Act, 1981, it <\/p>\n
is   the   Commissioner   who   on   the   basis   of   an   application   filed   by   an <\/p>\n
aggrieved   party   revise   the   order   passed   by   any   authority   subordinate   to <\/p>\n
him.   He also has the additional power alongwith the Joint Commissioner <\/p>\n
as   a   delegatee   as   provided   under   Section   46(4)   of   the   BFT   Act,   1981   to <\/p>\n
revise an order passed by an authority subordinate to it by exercising its <\/p>\n
suo motu power.\n<\/p>\n
15.    In   all   these   appeals,   the   Joint   Commissioner   of   Commercial   Taxes <\/p>\n
has exercised the power vested on him under Section 46(4) of the BFT Act, <\/p>\n
1981   which   power   in   most   cases   concerning   the   present   appeals   was <\/p>\n
exercised   by  him within   a period  of  three   years  but in  some  other   cases <\/p>\n
beyond the expiry of three years period, but soon thereafter.\n<\/p>\n
16.    In   that   view   of   the   matter,   counsel   appearing   for   the   respondent <\/p>\n
submitted   in   the   High   Court   that   exercise   of   such   power   by   the   Joint <\/p>\n
Commissioner after expiry of more than two years time is illegal, without <\/p>\n
jurisdiction   and   bad   in   law.   The   Division   Bench   of   the   Jharkhand   High <\/p>\n
Court found force in the aforesaid  submissions of the counsel appearing <\/p>\n
for   the   respondent   and   held   that   such   suo   motu   power   vested   on   an <\/p>\n
authority   must   be   exercised   within   three   years   period   which   is   a   period <\/p>\n
prescribed   under   Article   137   of   the   Limitation   Act,   1963.       According   to <\/p>\n
the   High   Court   where   no   time   limit   is   prescribed   for   filing   a   revision, <\/p>\n
Article 137 of the Limitation Act would apply to such cases.  It was further <\/p>\n
held   that   since   under   Section   46(4),   no   time   limit   is   prescribed   the <\/p>\n
limitation   as   prescribed   under   Article   137   of   the   Limitation   Act   would <\/p>\n
apply to the facts and circumstances of the present case.\n<\/p>\n
17.    Counsel   appearing   for   the   appellant,   however,   submitted   before   us <\/p>\n
that   the   aforesaid   contentions   on   the   face   of   it   cannot   be   accepted   as   a <\/p>\n
correct  position in law for by enacting sub-Section  (4) in Section  46, the <\/p>\n
legislature thought it fit not to impose any restriction or time limit so far <\/p>\n
as   limitation   is   concerned   and   therefore   to   hold   that   Article   137   of   the <\/p>\n
Limitation Act would apply to such provisions is nothing but misreading <\/p>\n
of   the   provisions   for   if   that   was   the   intention   of   the   legislature   it   would <\/p>\n
have   so   stated   specifically   by   making   the   said   provision   applicable   to   a <\/p>\n
case like this.\n<\/p>\n
18.    The counsel therefore, submitted that such power of initiation of suo <\/p>\n
motu revision proceedings by the Commissioner or Joint Commissioner as <\/p>\n
the case may be should be held to be without any time or such restriction <\/p>\n
or at least it should be held that such exercise of power of revision could <\/p>\n
be   exercised   suo   motu   within   a   reasonable   time   depending   on   the   facts <\/p>\n
and circumstances of each case.\n<\/p>\n
19.    Another submission which is advanced by the counsel appearing for <\/p>\n
the respondent was that the Joint Commissioner has exercised the power <\/p>\n
of   suo   motu   revision   in   the   instant   case   on   the   basis   of   an   application <\/p>\n
filed   by   the   Deputy   Commissioner   which   was   sent   to   the   Joint <\/p>\n
Commissioner by him and that application was drawn up and submitted <\/p>\n
under Section 46(4) itself and therefore, the entire exercise of power by the <\/p>\n
Joint   Commissioner   is   fallacious,   untenable   and   should   be   held   to   be <\/p>\n
illegal.\n<\/p>\n
20.    The   counsel   appearing   for   the   appellant,   however,   refuted   the   said <\/p>\n
allegations   and   submitted   that   although   Deputy   Commissioner   had <\/p>\n
written   a   letter   to   the   Joint   Commissioner   bringing   to   his   notice   some <\/p>\n
mistakes and errors apparent on the face of records and illegalities by his <\/p>\n
predecessor in his order, but, it was a power which was exercised by the <\/p>\n
Joint   Commissioner   independently   on   his   own   accord   and   therefore,   it <\/p>\n
cannot be said that the aforesaid power was exercised illegally or without <\/p>\n
jurisdiction.\n<\/p>\n
21.    We may therefore, refer to the materials on record so as to record our <\/p>\n
findings on the aforesaid issue.\n<\/p>\n
22.    In   all   these   appeals,   there   are   letters   which   were   written   by   the <\/p>\n
Deputy   Commissioner   of   Commercial   Taxes   to   the   Joint   Commissioner <\/p>\n
(Administration).  One of such letter is dated 28.8.2007.  In the said letter <\/p>\n
it is stated by the Deputy Commissioner that the said communication is <\/p>\n
regarding filing of suo motu revision under Section 46(4) of the BFT Act, <\/p>\n
1981.     The   aforesaid   letter   by   the   Deputy   Commissioner,   Commercial <\/p>\n
Taxes   was   written   to   the   Joint   Commissioner   (Administration).       In   the <\/p>\n
said   letter,   the   Deputy   Commissioner   has   pointed   out   some   alleged <\/p>\n
mistakes in the original tax assessment order and the revised order.     He <\/p>\n
also   stated   in   that   communication   that   he   is   unable   to   agree   with   the <\/p>\n
revised   tax   assessment   order   and   reimbursement   order   passed   by   the <\/p>\n
Divisional   Incharge   and   therefore,   according   to   his   opinion   a   revision <\/p>\n
should   be   filed   under   Section   46(4)   of   the   BFT   Act,   1981   against   the <\/p>\n
revised tax assessment order dated 29.12.2005<\/p>\n
23.    Our attention was also drawn to the notice for revision issued by the <\/p>\n
Joint   Commissioner   of   Commercial   Taxes   (Administration).     One   of   the <\/p>\n
notices   is   dated  17.12.2007  issued   to   M\/s.   Shivam   Coke   Industries <\/p>\n
namely   the   respondent   herein   for   the   assessment   years   1988-1989   to <\/p>\n
1992-1993 and 1996-1997.   The said notice reads as follows:-\n<\/p>\n
         “Whereas all the points and facts have not been considered <\/p>\n
         while   passing   the   revised   assessment   orders   pertaining   to <\/p>\n
         the   above   cases   which   were   to   be   considered   as   per <\/p>\n
         directions   of   the   appellate   court,   hence  the   related   revised <\/p>\n
         assessment   orders   are   not   in   conformity   neither   the <\/p>\n
         directions of the appellate court and the provisions of law.<\/p>\n
         In the light of the above facts the legality & propriety of the <\/p>\n
         revised   assessment   orders   has   not   been   established   and <\/p>\n
         hence the revision of the said orders have been considered <\/p>\n
         necessary.\n<\/p><\/blockquote>\n
\n
         You   are   hereby   directed   to   be   present   before   the <\/p>\n
         undersigned   on   15.5.2007   and   place   your   side   as   to   why <\/p>\n
         the above stated revised orders should not be set aside?<\/p>\n<\/blockquote>\n
                 Joint Commissioner of Commercial Taxes (Adm.)<\/p>\n
                 Dhanbad Division, Dhanbad”<\/p><\/blockquote>\n
24.    Such   orders   are   also   existing   against   similar   notices   in   the <\/p>\n
connected matters.\n<\/p>\n
25.    Relying   on   the   aforesaid   two   documents,   the   counsel   for   the <\/p>\n
respondent   submitted   before   us   that   it   is   apparent   on   the   face   of   the <\/p>\n
record that the Joint Commissioner of Commercial Taxes initiated the suo <\/p>\n
motu   action   on   the   basis   of   the   letter   of   the   Deputy   Commissioner, <\/p>\n
Commercial Taxes who had stated that the revision should be filed under <\/p>\n
Section 46(4) of the BFT Act, 1981.   It was submitted in such a situation <\/p>\n
and that since it is an application filed by the Deputy Commissioner, the <\/p>\n
same   was   a   power   to   be   exercised   under   Section   46   (2)   of   the   BFT   Act, <\/p>\n
1981     which   is   an   ordinary   power   of   revision   to   be   exercised   by   the <\/p>\n
competent   authority   on   an   application   filed   by   the   aggrieved   party   and <\/p>\n
here   the   Deputy   Commissioner.     According   to   the   counsel,   since   the <\/p>\n
Deputy   Commissioner   is   an   aggrieved   party,   he   could   file   such   an <\/p>\n
application seeking for revision within a period prescribed i.e. 90 days and <\/p>\n
in   that   view   of   the   matter   even   if   the   Joint   Commissioner   exercises   suo <\/p>\n
motu power, such power could and should have been exercised within a <\/p>\n
period of 90 days as prescribed.\n<\/p>\n
26.    We are, however, unable to accept the aforesaid contentions for the <\/p>\n
simple reason that  a bare perusal of the notice issued on 17.12.2007, the <\/p>\n
contents   of   which   have   been   extracted   hereinbefore   would   indicate   that <\/p>\n
the aforesaid notice was issued by the Joint Commissioner by exercising <\/p>\n
his individual suo motu power as provided under Section 46(4).   It is not <\/p>\n
a case where such notice was issued on the basis of an application filed <\/p>\n
by the Deputy Commissioner. This is obvious because in the said notice, <\/p>\n
there   is   absolutely   no   reference   made   of   the   application   sent   by   the <\/p>\n
Deputy Commissioner.   If from the available records of a particular case, <\/p>\n
the Joint Commissioner forms an independent opinion that the same is a <\/p>\n
case   where   suo   motu   power   of   Revision   should   be   exercised,   he   is <\/p>\n
empowered to so exercise such suo motu power of revising an order which <\/p>\n
appears to  be illegal  and without jurisdiction  to  the  competent  authority <\/p>\n
who   is   empowered   to   issue   such   notice   by   recording   his   reasons   for <\/p>\n
coming to such a conclusion in the notice itself.\n<\/p>\n
27.    In the present case,  the  Joint  Commissioner has  exercised his own <\/p>\n
independent   mind   for   issuing   the   notice   and   also   recorded   his   own <\/p>\n
reasons   for   coming   to   a   conclusion   as   to   why   the   power   under   Section <\/p>\n
46(4)   should   be   exercised.       Having   recorded   the   aforesaid   reason,   such <\/p>\n
notice was issued to the assessee after forming a decision.   The assessee <\/p>\n
was informed by issuing the said notice that the legality and propriety of <\/p>\n
the   revised   assessment   order   has   not   been   established   because   of   the <\/p>\n
reasons   mentioned   in   the   notice   and   therefore,   the   revision   of   the   said <\/p>\n
orders   is   proposed   is   it   has   been   considered   necessary.         By   the   said <\/p>\n
notice,   the   assessee   was   directed   to   be   present   before   the   Joint <\/p>\n
Commissioner and place his side as to why the above revised assessment <\/p>\n
order should not be set aside.\n<\/p>\n
28.    The   respondent   being   aggrieved   by   the   issuance   of   the   aforesaid <\/p>\n
order   filed   a   writ   petition   before   the   High   Court.       The   High   Court, <\/p>\n
however, did not grant any stay of the aforesaid notice and permitted the <\/p>\n
respondent   to   contest   the   said   notice   in  accordance   with   law  during  the <\/p>\n
course   of   which   the   Joint   Commissioner   of   Commercial   Taxes   has   set <\/p>\n
aside the revised orders and sent back the matter for fresh assessment to <\/p>\n
the assessing officer.\n<\/p>\n
29.    The   aforesaid   subsequent   development   which   had   taken   place <\/p>\n
during the pendency  of the writ petition  in  the High  Court  has  not been <\/p>\n
addressed   to   and   decided   by   the   High   Court   as   the   High   Court   has <\/p>\n
disposed of the entire writ petition on two issues namely on the issue of <\/p>\n
the ambit and scope of Section 46(4) of the BFT Act, 1981 and also on the <\/p>\n
ground of limitation.\n<\/p>\n
30.    The   Deputy   Commissioner,   Commercial   Taxes   Division   has   pointed <\/p>\n
out in his communication to the Joint Commissioner several loopholes in <\/p>\n
the   revised   assessment   orders   passed   by   the   assessing   officer.     The <\/p>\n
Deputy   Commissioner   has   also   pointed   out   how   the   assessee   has   made <\/p>\n
conflicting   claims   and   statements   and   also   how   while   upholding   such <\/p>\n
contradictory   claims,   there   has   been   a   revenue   loss   for   the   department.\n<\/p>\n
Alongwith his letter, some of the relevant records were transmitted to the <\/p>\n
Joint   Commissioner.       It   is   true   that   the   Deputy   Commissioner, <\/p>\n
Commercial Taxes Division has brought out and pointed out some of the <\/p>\n
illegalities   and   irregularities  committed   in   the   revised   assessment   orders <\/p>\n
passed   by   his   predecessor   in   the   assessment   orders   relating   to   the <\/p>\n
respondent.\n<\/p>\n
31.    But the impugned notice issued by the Joint Commissioner  ex facie  <\/p>\n
indicates   that   he   being   the   competent   authority   has   formed   an <\/p>\n
independent   opinion   and   personal   satisfaction   that   the   legality   and <\/p>\n
propriety   of   the   revised   assessment   orders   has   not   been   established <\/p>\n
because of the reasons specifically stated in the said notice and therefore <\/p>\n
he has thought it fit to exercise his power of suo motu revision consequent <\/p>\n
upon which the aforesaid notice was issued.\n<\/p>\n
32.    There   is   no  reference   in   the   said   notice   to   the   letter   and   any   other <\/p>\n
materials contained with the letter of the Deputy Commissioner anywhere <\/p>\n
in   the   notice   and   therefore,   it   cannot   be   said   that   while   coming   to   the <\/p>\n
aforesaid   conclusion   in   the   impugned   notice,   the   Commissioner   was <\/p>\n
influenced   only   by   the   opinion   of   the   Deputy   Commissioner.       On <\/p>\n
consideration   of   the   records   we   are   satisfied   that   it   was   not   a   revision <\/p>\n
initiated on the basis of any application filed by an aggrieved party namely <\/p>\n
the Deputy Commissioner but initiation of a Revisional proceeding by the <\/p>\n
Joint   Commissioner   by   forming   his   own   opinion   and   satisfaction   to <\/p>\n
exercise suo motu power vested under Section 46(4) of the BFT Act on the <\/p>\n
basis   of  the   materials  on  record.       The   aforesaid  contention   is   therefore, <\/p>\n
rejected.\n<\/p>\n
Issue   2   –   Whether   or   not   the   action   taken   by   the   Department   was <\/p>\n
barred by limitation <\/p>\n
33.    The next issue which now arises for our consideration is whether the <\/p>\n
aforesaid   exercise   of   power   of   drawing   up   a   revisional   proceeding   by <\/p>\n
exercising   suo   motu   power   was   not   exercised   within   the   period   of <\/p>\n
limitation or within a reasonable period of time.\n<\/p>\n
34.    We have also extracted the provision which clearly indicates that no <\/p>\n
period   of   limitation   is   prescribed   for   initiation   of   suo   motu   revisional <\/p>\n
proceeding   by   the   Commissioner   or   the   Joint   Commissioner   as   the   case <\/p>\n
may   be,   whereas   a   period   of   limitation   is   prescribed   for   filing   a   revision <\/p>\n
application   by   an   aggrieved   party   for   initiation   of   the   revisional <\/p>\n
jurisdiction   of the  Commissioner  which  period  is  90  days,   as  is  stood  at <\/p>\n
that relevant time.\n<\/p>\n
35.    The High Court has held that there cannot be an unlimited period of <\/p>\n
limitation even for exercising of suo motu revisional power for initiation of <\/p>\n
a proceeding by the Commissioner or the Joint Commissioner as the case <\/p>\n
may  be   and  therefore  provision  of  Article   137   of  the   Limitation   Act    was <\/p>\n
read into the Act laying down that at least within a period of three years <\/p>\n
from the date of accrual of the cause of action such a power of suo motu <\/p>\n
Revision should be exercised by the Joint Commissioner.\n<\/p>\n
36.    We   are   again   unable   to   accept   the   aforesaid   contention   as   the <\/p>\n
legislature has not stated in the provision at all regarding the applicability <\/p>\n
of Article 137 of the Limitation Act to Section 46(4) of the BFT Act.   If the <\/p>\n
legislature intended to provide for any period of limitation or intended to <\/p>\n
apply   the  said   provision   of   Article   137   into  Section   46(4),   the   legislature <\/p>\n
would have specifically said so in the Act itself.   When the language of the  <\/p>\n
legislature is clear and unambiguous, nothing could be read or added to <\/p>\n
the   language,   which   is   not   stated   specifically.   Therefore,   the   High   Court <\/p>\n
wrongly   read   application   of   Section   137   of   the   Limitation   Act   to   Section <\/p>\n
46(4) of the BFT Act.\n<\/p>\n
37.    It   is   a   settled   position   of   law   that   while   interpreting   a   statute, <\/p>\n
nothing could be added or subtracted when the meaning of the section is <\/p>\n
clear   and   unambiguous.     In   this   connection   we   may   also   refer   to   the <\/p>\n
decision of this Court in Sakuru vs. Tanaji<\/a> reported in (1985) 3 SCC 590 <\/p>\n
wherein   it   was   stated   by   this   Court   that   the   Limitation   Act   applies   to <\/p>\n
courts and not to quasi judicial authority.\n<\/p>\n
38.    The aforesaid principle and settled position of law was totally ignored <\/p>\n
by the High Court while laying down that Article 137 of the Limitation Act <\/p>\n
would be applicable to the facts and circumstances of the present case.\n<\/p>\n
39.    We   would,   however,   agree   with   the   position   that   such   a   power <\/p>\n
cannot   be   exercised   by   the   revisional   authority   indefinitely.       In   our <\/p>\n
considered  opinion,   such   extra   ordinary   power   i.e.   suo   motu   power   of <\/p>\n
initiation of revisional proceeding has to be exercised within a reasonable <\/p>\n
period of time and what is   a reasonable period of time would depend on <\/p>\n
the facts and circumstances of each case.\n<\/p>\n
40.    For   this   proposition,   a   number   of   decisions   of   this   Court   can   be <\/p>\n
referred to on which reliance was placed even by the counsel appearing for <\/p>\n
the respondent.\n<\/p>\n
41.  In Sulochana Chandrakant Galande Vs. Pune Municipal Transport <\/p>\n
and   Others  reported   in  (2010)   8   SCC   467,  this   Court   dealing   with   the <\/p>\n
issue of “reasonable time” held as follows:-\n<\/p>\n
          29. In view of the above, we reach the inescapable conclusion <\/p>\n
          that   the   revisional   powers   cannot   be   used   arbitrarily   at   a <\/p>\n
          belated stage for the reason that the order passed in revision <\/p>\n
          under   Section   34   of   the   1976   Act,   is   a  judicial   order.   What <\/p>\n
          should be reasonable time, would depend upon the facts and <\/p>\n
          circumstances of each case.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
42.    In  Govt.   of   India   v.   Citedal   Fine   Pharmaceuticals,   Madras   and <\/p>\n
Others reported in  (1989) 3 SCC 483:\n<\/p>\n
          6.   ……While   it   is   true   that   Rule   12   does   not   prescribe   any <\/p>\n
          period within which recovery of any duty as contemplated by <\/p>\n
          the rule is to be made, but that by itself does not render the <\/p>\n
          rule   unreasonable   or   violative   of   Article   14   of   the <\/p>\n
          Constitution. In the absence of any period of limitation it is <\/p>\n
          settled that every authority is to exercise the power within a <\/p>\n
          reasonable  period. What  would  be  reasonable  period,   would <\/p>\n
          depend upon the facts of each case…..\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
43.    In  State of Punjab & Ors.   v. Bhatinda District Cooperative Milk <\/p>\n
Producers Union Ltd.<\/a> reported in (2007)
\n                                                       11 SCC 363   <\/p>\n
          18.   It   is   trite   that   if   no   period   of   limitation   has   been <\/p>\n
          prescribed, statutory authority must exercise its jurisdiction <\/p>\n
          within   a   reasonable   period.   What,   however,   shall   be   the <\/p>\n
          reasonable   period   would   depend   upon   the   nature   of   the <\/p>\n
          statute,   rights   and   liabilities   thereunder   and   other   relevant <\/p>\n
          factors.\n<\/p>\n
44.    Now,   the   question   that   arises   for   our   consideration   is   whether   the <\/p>\n
power   to   exercise   Suo   motu   revisional   jurisdiction     by   the   Joint <\/p>\n
Commissioner   in   the   present   cases   was   exercised   within   a   reasonable <\/p>\n
period.     On perusal of the records, we find that such powers have been <\/p>\n
exercised   within   about   three   years   of   time   in   some   cases   and   in   some <\/p>\n
cases   soon   after   the   expiry   of   three   years   period.     Such   period   during <\/p>\n
which power was exercised by the Joint Commissioner cannot be said to <\/p>\n
be unreasonable by any stretch of imagination in the facts of the present <\/p>\n
case.       Three   years   period   cannot   be   said   to   be   a   very   long   period   and <\/p>\n
therefore, in all these cases, we hold that the power was exercised within <\/p>\n
a reasonable period of time.\n<\/p>\n
Issue   3:   Whether   the   order   dated   26.11.2007   passed   by   the   Joint <\/p>\n
Commissioner is proper and could be maintained;\n<\/p>\n
45.    Having decided the aforesaid two issues in the aforesaid manner, the <\/p>\n
next     and the  last  issue   that  arises for  our  consideration   is  whether   the <\/p>\n
order   dated   26.11.2007   passed   by   the   Joint   Commissioner   setting   aside <\/p>\n
the   revised   assessment   order   dated   27.12.2003   is   proper   and   could   be <\/p>\n
maintained, as the said order was passed during the pendency of the writ <\/p>\n
petition in the High Court.\n<\/p>\n
46.     On this issue also, we have heard the learned counsel appearing for <\/p>\n
the   parties.   The   aforesaid   order   dated   26.11.2003   was   passed   while   the <\/p>\n
respondent was fighting out the litigation in the High Court and therefore, <\/p>\n
it was not possible for the assessee to give his entire focus and attention <\/p>\n
and   also   to   give   full   concentration   to   the   aforesaid   proceeding   pending <\/p>\n
before   the   Joint   Commissioner.     The   learned   counsel   appearing   for   the <\/p>\n
appellant   also   could   not   dispute   the   fact   that   the   respondent   was <\/p>\n
somewhat handicapped in contesting the aforesaid matter very effectively <\/p>\n
before the Joint Commissioner.\n<\/p>\n
47.    Considering the entire facts and circumstances of the case, we also <\/p>\n
set   aside   the   order   dated   26.11.2007   and   remit   back   the   matter   to   the <\/p>\n
Joint Commissioner once again to hear the parties and to pass fresh order <\/p>\n
in   respect   of   the   legality   and   propriety   of   the   revised   assessment   order <\/p>\n
dated 26.12.2003.  Consequently, the matter is now remitted to the Joint <\/p>\n
Commissioner of Commercial Taxes to pass order in accordance with law <\/p>\n
giving   reasons   for   its   decisions   as   expeditiously   as   possible.     The <\/p>\n
impugned   judgment   and   order   passed   by   the   High   Court   is   set   aside   to <\/p>\n
the aforesaid extent while remitting back the matter as aforesaid, leaving <\/p>\n
the parties to bear their own costs.\n<\/p>\n
                                                ……………………………………………..J<\/p>\n
                                           (Dr. MUKUNDAKAM SHARMA)<\/p>\n
                                                ……………………………………………..J<\/p>\n
                                        (ANIL R. DAVE)<\/p>\n
NEW DELHI<\/p>\n
AUGUST 10, 2011<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Jharkhand & Ors.Etc vs M\/S Shivam Coke Industries … on 10 August, 2011 Author: . M Sharma Bench: Mukundakam Sharma, Anil R. Dave 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 […]<\/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-220512","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Jharkhand & Ors.Etc vs M\/S Shivam Coke Industries ... on 10 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-ors-etc-vs-ms-shivam-coke-industries-on-10-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Jharkhand & Ors.Etc vs M\/S Shivam Coke Industries ... on 10 August, 2011 - 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