Appeal No 367 of 1969
Appeal by special leave from the judgment and order dated October 28 1968 of the Madhya Pradesh High Court in Misc
Civil Case No 188 of 1967
I N Shroff for the appellant
The respondent did not appear
The Judgment of the Court was delivered by Hegde J
This appeal by special leave arises from the deci sion of the Madhya Pradesh High Court in a reference under section 44 of the Madhya Pradesh Sales Tax Act 1959
The reference was made by the Board of Revenue
After stating the case the Board of Revenue referred the following question to the High Court for its opinion Whether on the facts and circumstances of the case the Commissioner of Sales Tax acted illegally in exercising his powers  of revision under section 392 of the Madhya Pradesh General Sales Tax Act 1958 in respect of the assessment order dated 28 12 1961 which was passed in respect of the returns submitted on 30 1 1958 and 17 6 1958 and on the basis of the notice in form XI issued on 29 8 1961  The High Court answered that question in the affirmative and in favour of the assessee
Aggrieved by that order the Commissioner of Sales Tax Madhya Pradesh has come up in appeal to this Court
The assessee Ms Amarnath Ajitkumar was a registered dealer under the Madhya Bharat Sales Tax Act Samv 2007
For the period from July 1 1957 to 31st March 1958 the period with which we are concerned in this appeal the assessee submitted its return for the second and third quarters on January 30  1958 and for the fourth quarter on 17th June 1958
These returns were made under section 93 of the 
The sales tax concerned in the present case was that leviable under the 
But the procedure to by adopted in the matter of assessment and collect ion was that prescribed in the Madhya Bharat Sales Tax Act Samv
The Madhya Bharat Act was repealed by the Madhya Pradesh General Sales Tax Act 1959 which came into force on April 1 1959
Thereafter the Assistant Commissioner of Sales Tax issued a notice in form XI of the Madhya Pradesh Sales Tax Central Rules 1959 on August 29 1961
That Officer passed the assessment order on November 28 1961
On October 30 830 1964 the Commissioner of Sales Tax initiated proceedings under section 392 of the MP Sales Tax Act 1959 for revising the assessment made
After notice to the dealer the Commissioner on April 15 1965 revised the assessment and enchanced the same by a sum of Rs 99306 paise
The assessee s appeal to the Board of Revenue was dismissed on June 20 1966
Both before the Commissioner as well as the Board of Revenue the assessee contended that as the assessment related to the period when Madhya Bharat Sales Tax Act Samv
2007 was in force the revision of that assessment is governed by section 121 of that Act and not section 392 of the MP Act 1959
It was urged on its behalf that under the Madhya Bharat Act the Commissioner could not have revised the order of assessment after the expiry of two years after the assessment was made
Hence the Commissioner was not competent to revise the assessment
The Commissioner as well as the Board of Revenue rejected that contention
They came to the conclusion that it was open to the Commissioner to take action under S392 of the MP General Sales Tax Act 1959 in the matter of revising the assessment
The High Court did not agree with that view
It held that in view of section 52 of the 1959 Act the governing provision in the matter of revising the assessment was section 121 of the Madhya Bharat Act
The only question that we have to decide is whether in the facts and circumstances of the case the Commissioner could have exercised his power under section 392 of the MP Sales Tax Act 1959
Section 121 of the Madhya Bharat Act provides The Commissioner may in his discretion at any time suo moto or being moved by the assessing authority call for and examine the records of any proceedings under this Act and if he considers any order is illegal or improper or erroneous in so far as it is pre judicial to the interests of the revenue he may pass orders as he thinks fit  Provided that no order shall be passed prejudicial to a dealer without giving him an opportunity of hearing Provided further that the Commissioner shall not revise an order which has been made more than two years previously From the second proviso it is clear that the Commissioner is precluded from revising an order which had been made more than two years previously
That proviso did not lay down any rule of limitation
But it took away the power of the Commissioner 831 to revise any assessment after the prescribed period
Thereafter the assessment became final and conclusive as against the Department as well as the assessee unless it was liable to be changed under some other provision of the Madhya Bharat Act
Section 392 of the MP Sales Tax Act of 1959 says The Commissioner may of his own motion or on information received call for and examine the record of any proceeding under this Act if he considers that any order passed therein by any person appointed under section 3 to assist him is erroneous in so far as it is prejudicial to the interests of the revenue he may after giving the dealer an opportunity of being heard and
after making or causing to be made such inquiry as he deems necessary pass such order thereon as the circumstances of the case justify including an order enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment Provided that no proceedings shall be initiated under this sub section after the expiry of three years from the date of the order sought to be revised 
The MP Sales Tax Act 1959 which repealed the Madhya Bharat Act by section 52 therein provided the following repeal and saving provisions
521
The Central Provinces and Berar Sales Tax Act 1947 the Madhya Bharat Sales Tax Act Samv
2007 the Central Provinces and Berar Sales Tax Act 1947 as extended to Vindhya Pradesh and Bhopal region and as in force in those regions immediately before the commencement of this Act and the Rajasthan Sales Tax Act 1954 as in force in Sironj region are hereby repealed  Provided that such repeal shall not affect the previous operation of the said Acts or any right title obligation or liability already acquired accrued or incurred thereunder and subject thereto anything done or any action taken including any appointment notification notice order rule form regulation certificate or licence in the exercise of any power conferred by or under the said Acts shall in so far as it is not inconsistent with the provisions of this Act be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the date on which such thing was done or action was taken and all arrears of taxes and other 832 amounts due at the commencement of this Act may be recovered as if they had accrued under this Act
 The High Court came to the conclusion that in view of the decisions of this Court in The Sales Tax Officer Circle 1 Jabalpur vs Hanuman Prasad1 and The Swastik Oil Mills Ltd vs H B Munshi Dy
Commissioner of Sales Tax Bombay 2 the Commissioner was incompetent to revise the order because of section 121 of the Madhya Bharat Act read with section 521 of the MP Sales Tax Act 1959
Hanuman Prasad s case supra arose out of MP Sales Tax Act 1959
Therein in respect of a period governed by the Central Provinces and Berar Sales Tax Act 1947 the assessee therein filed its return and a notice in form XII was issued to him on March 10 1959
The assessee s turnover was assessed by an order dated May 23 1959
But in the meantime MP Sales Tax Act 1959 came into force on April 1 1959
The Commissioner sought to revise the order of assessment on the ground that a portion of assessee s turnover had escaped assessment
The question arose whether he had to exercise his powers within the time fixed by the Berar Sales Tax Act 1947 or that fixed under MP Sales Tax Act 1959
The specific question that arose for decision in that case was whether the Commissioner s power to revise had to be exercised in accordance with section 11A1 of the Central Provinces and Berar Sales Tax Act 1947 as contended by the assessee or under section 191 of the MP Sales Tax Act 1959 as contended by the Department
That question was examined by this Court from several angles
One of the tests applied was what is the effect of section 52 of the MP Sales Tax Act 1959
Dealing with that aspect this Court observed at p 90 of the report It was under section 52 of the new Act that the repealed Act was repealed and that section itself under the proviso laid down that such repeal shall not affect the previous operation of the said Act or any right title obligation or liability already acquired accrued or incurred thereunder
There was also the further addition that subject thereto anything done or any action taken including any appointment notification notice order rule form regulation certificate or licence in the exercise of any power conferred by or under the said Act shall in so far as it is not inconsistent with the provisions of this Act be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act were in force on the date on view of this proviso it has to be held that when this new which such thing was done or action was taken
In 1 19 STC 87
2 21 STC 383 833 Act came into force on 1st April 1959 all rights title obligation or liability already acquired accrued or incurred under the repealed Act by the respondent remained unaffected and intact
The rights and liabilities which had been acquired or incurred under the repealed Act included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force Agreeing with the High Court this Court held in Hanuman Prasad s1 case that the Commissioner could not have revised the order of assessment after the period prescribed in the repealed Act
One of the reasons given in support of that conclusion is that the rights and liabilities which had been acquired or incurred under the repealed Act included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force
The expression assessment includes re assessment
Swastik oil MillS2 case is a converse case
Therein the assessee was assessed to sales tax under the Bombay Sales Tax Act 1946 for the periods 1st April 1948 to March 31 1950 and April 1 1950 to March 31 1951
On January 7 1963 Deputy Commissioner initiated proceedings under section 31 of the Bombay Sales Tax Act 1 1953 proposing to revise the order of the Assistant Collector of Sales Tax in so far as he had allowed deduction in respect of the entire goods despatched by the assessee to its branches in other states overlooking the provisions of proviso b to rule 1 ii under section 6 3 of the Act of 1946 as amended in 1949
The question was whether the Deputy Commissioner could take advantage of the longer period prescribed under the Bombay Sales Tax Act 1946 or whether he was required to exercise his powers within the shorter period fixed under the 1953 Act
Bombay High Court as well as this Court came to the conclusion by applying the provisions in section 7 of the Bombay General Clauses Act 1 of 1904 that the Deputy Commissioner was entitled to exercise his power of revision within the period prescribed under the repealed Act
Section 7 of the Bombay General Clauses Act provides where this Act or any Bombay Act or Maharashtra Act made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall not caffect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed
1 19 STC 87
2 21 STC 383
834 eaffect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid and any such investigation legal proceeding or remedy may be instituted continued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing Act had not been passed Dealing with the scope of those provisions this is what this Court observed  Very clearly the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act or 1946 in respect of the turnover which became liable to sales tax under the Act of 1946
The effect of clause e of section 7 of the Bombay General Clauses Act further is that any legal proceeding in respect of levy imposition or recovery of that tax is to continue and any fresh investigation legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959
Consequently the repeal of the Act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been passed in exercise of his powers under the Act of 1946
It is true as urged by Mr Desai in the alternative that in fact the proceedings should have been taken not under section 31 of the Act of 1953 but under section 22 of the Act of 1946
That is so because when the Act of 1946 was repealed by the Act of 1953 similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946
Section 482 and section 491 clearly contained provisions indicating that in respect of a liability to tax under the Act of 1946 the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act
Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946 had to proceed under section 22 of the Act of 1946
That however is not at all material because the provisions of section 22 of the Act of 1946 are quite similar to those of section 31 835 of the Act of 1953
The mere incorrect mention of section 31 of the Act of 1953 in the notice is immaterial
The Deputy Commissioner has the jurisdiction and power to revise the order under section 22 of the Act of 1946 and consequently the proceedings initiated by him are not without jurisdiction
 Now coming back to section 52 of the MP Sales Act of 1959 the proviso to section 521 provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder
The question is whether the bar on the power of the Commissioner from exercising the powers under section 121 of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee  The effect of that provision is that after the time prescribed in that provision the Commissioner could not revise the order of assessment to the prejudice of the assessee
Similarly he could not revise the order of assessment to the prejudice of the Revenue
Section 121 conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date
We fail to see why section 121 of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date
That is a valuable right
The effect of section 52 1 of MP Sales Tax Act as seen earlier is that all assessments which includes reassessments should be in accordance with the repealed Act
The second part of that proviso says that subject to what has been provided in the first part of the proviso anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act shall in so far as it is not inconsistent with the provisions of the MP Sales Tax Act 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done
There is undoubtedly a conflict between section 121 of the Madhya Bharat Act and section 392 of the MP Sales Tax Act 1959
The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised
Therefore the Revenue cannot call into aid the second part of the proviso
The resulting position is that the governing provision would continue to be section 121 of the Madhya Bharat Act
For the reasons mentioned above this appeal fails and the same is dismissed
Respondent is ex parte
No costs
L 3 Sup CI72 2500 5 10 72 GIPF 835 of the Act of 1953
The mere incorrect mention of section 31 of the Act of 1953 in the notice is immaterial
The Deputy Commissioner has the I jurisdiction and power to revise the order under section 22 of the Act of 1946 and consequently the proceedings initiated by him are not without jurisdiction
 Now coming back to section 52 of the MP Sales Act of 1959 the proviso to section 521 provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder
The question is whether the bar on the power of the Commissioner from exercising the powers under section 121 of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee  The effect of that provision is that after the time prescribed in that provision the Commissioner could not revise the order of assessment to the prejudice of the assessee
Similarly he could not revise the order of assessment to the prejudice of the Revenue
Section 121 conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date
We fail to see why section 121 of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date
That is a valuable right
The effect of section 521 of MP Sales Tax Act as seen earlier is that all assessments which includes reassessments should be in accordance with the repealed Act
The second part of that proviso says that subject to what has been provided in the first part of the proviso anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act shall in so far as it is not inconsistent with the provisions of the MP Sales Tax Act 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done
There is undoubtedly a conflict between section 121 of the Madhya Bharat Act and section 392 of the MP Sales Tax Act 1959
The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised
Therefore the Revenue cannot call into aid the second part of the proviso
The resulting position is that the governing provision would continue to be section 12 1 of the Madhya Bharat Act
For the reasons mentioned above this appeal fails and the same isdismissed
Respondent is ex parte
No costs
VPS Appeal dismissed 


Summary:
Section 121 of the Madhya Bharat Sales Tax Act Samv
2007 prohibits the Commissioner of Sales tax from revising an order of assessment which had been made more than two years previously while section 392 of the Madhya Pradesh Sales Tax Act 1959 which came into force on April 1 1959 and which repealed the Madhya Bharat Act permits the Commissioner to revise an order till the expiry of three years from the date of the order sought to be revised
The assessee was a registered dealer under the Madhya Bharat Act
For the period from July 1 1957 to 31st March 1958 he submitted returns
The Assistant Commissioner of Sales Tax passed an assessment order on November 28 1961
On October 30 1964 the Commissioner of Sales Tax initiated proceedings tinder section 392 of the Madhya Pradesh Act for revising the assessment made
The assessee contended that as the assessment related to the period when the Madhya Bharat Act was in force the revision of the assessment was governed by section 121 of that Act and therefore the Commissioner could not have revised the order of assessment after the expiry of two years after the assessment was made
The High Court in reference held that in view of section 52 of the Madhya Pradesh Act the governing provision was section 121 of the Madhya Bharat Act
Dismissing the appeal to this Court HELD1 The proviso to section 521 of the Madhya Pradesh Act provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued there
The effect of section 12  1  of the Madhya Bharat Act is that after the time prescribed in that provision the Commissioner could not revise the order of assessment either to the prejudice of the assessee or of the Revenue Me section thus conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after two years from the date of the assessment order
Therefore the effect of section 521 of the Madhya Pradesh At is that all assessments which include reassessments should be in accordance with the repealed Act
835 B E Sales Tax Officer Circle I Jabalpur vs Hanuman Prasad 19 STC 87 and Swastik Oil Mills Ltd vs H B Munshi Dy Commissioner of Sales Tax Bombay 21 STC 383 followed
2The second part of the proviso no doubt provides that any action taken under the repealed Act shall in so far as it is not inconsistent with the provisions of the latter Act be deemed to have been done under the latter Act
But there is undoubtedly a conflict between section 121 of the Madhya Bharat Act and section 392 of  the Madhya Pradesh Act
Therefore the Revenue cannot call in aid the second part of the proviso
835 E H 829