LexSTATE OF ORISSA AND ORS. versus MIS. KRISHNA STORES
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A STATE OF ORISSA AND ORS. v. MIS. KRISHNA STORES JANUARY 21, 1997 B (AM. AHMADI, CJ. AND SUJATA V. MANOHAR, J.) Sales Tax: Orissa Sales Tax Act, 1947/0rissa Sales Tax Rules, 1947, Sections 23 C (4), 12 (4), 12 (8)/Rules 80, 49--Bar in Rule 80 in exercise of the suo moto power of revision by the Commissio11e1-Held: Not applicable to an order summarily rejecting the appeal under Rule 49 for non-rectification of defects-Proper opportunity of hewing before passing the order of revision was given to the assessee as he was served with a notice, appeared through his counsel and submitted written submission which was considered, before D passing the ordel'-Administrative LaW-Natural justice-Opportunity of hear- ing. The respondent firm was assessed for the assessment year 1969-70 under Section 12 (4) of the Orissa Sales Tax Act, 1949. Consequent to E seizure of its account books it was reassessed for that year under Section 12 (8) . It was also assessed for the assessment year 1970-71 under Section 12 (4). It filed appeals in respe1:t of both the assessment years. The appeals were defective in as much as the requisite court fees were not paid and the grounds of appeals were not mentioned. Since, despite reminders and notices the respondent did nolt rectify the defects, the appeals were sum- p marily rejected under Rule 49 of the Orissa Sales Tax Rules. Subsequently Commissioner, Sales Tax issued notices under Rule 80 of the Orissa Sales Tax Rules for proposed revision of the assessment Orders for the said two years on the ground that a large amount of turnover had escaped assess- ment. Ultimately, the Commissioner revised the assessment orders for G both the assessment years and enhanced the amount of chargeable tax. On appeal the High Court quashed both revisional orders. The present appeals were filed by the Revenue against the Order of the High Court. The respondent contended that in view of the rejection of the appeals, the power of suo moto revision under Rule 80 could not have H been exercised by the Commissioner, and that it was not given an oppor- 436 ··'",'. STA TE v. MIS KRISHNA STORES 437 tunity of hearing. Allowing the appeals, this Court HELD: 1.1. An order rejecting the appeals under Rule 49 of the Orissa Sales Tax Rules does not preclude the Commissioner from exercis- A ing power under Section 23 ( 4) of the Orissa Sales Tax Act read with Rule B 80. An order rejecting the appeal on the ground that it is not in the specified form or that all the requirements of the form are not fully complied with cannot be considered to be an appellate order within the meaning of Rule 80 of the Orissa Sales Tax Rules. Rule 49 (1) clearly provides that such summary rejection can take place after giving the C appellant an opportunity to rectify the defects. This is not a rejection or dismissal of appeal after hearing the appellant on merits. Hence such an . order would not qualify as an appellate order under Rule 80. [441-G-H] 1.2 .. The purpose of a revision by the Commissioner suo moto is to ensure that the assessee is correctly assessed relating to his tax liability. D If there is an appellate authority which has considered the assessment Order, then the Commissioner cannot suo moto revise the order. When, however, an appeal is not accepted for consideration at all because of defects there is no question of the department being required to follow the procedure laid down for challenging such an order. Rule 80, when it refers E to the Commissioner exercising a suo moto power of revision in respect of orders other than appellate orders, clearly contemplates an appellate order which has considered the Original assessment order on merit in some form or the other. [441-G-H; 442-A-B] 1.3. In the context of Section 23 ( 4) of the Orissa Sales Tax Act where F the words -" any order other than an appellate order" are absent, the prohibition against revising an appellate order in Rule 80 should be taken to apply only to an appellate order in its full sense i.e. an order which is passed after considering any issue arising in the appeal. It would not cover an order of rejection under Rule 49 (1), when the appeal is not entertained G at the threshold for consideration. [ 444-H; 445-A] CIT v. Amrit Lal Bhogilal & Co., (1958) 34 ITR 130; Goier Bros. (P) Ltd. v. Ratan Lal Singh, [1975) 1 SCR 394; Sheoda Singh v. Daryao Kanwar, AIR (1966) SC 1332 and State of Madras v. Madu
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