Case: M/S. Ocl India Ltd Vs. State Of Orissa

e, a company registered under the Companies Act, 1956, in a manufacturer of cement and refractory products. It is a registered dealer under the Orissa Sales Tax Act, 1947 (for short, the Act). For the assessment Yearthe Sales Tax Officer passed an order of assessment under the Central Sales Tax Officer passed an order of assessment under the Central Sales Tax Act on October 20, 1987. On December 13, 1995, the Assistant Commissioner, in exercise of the delegated power, issued a show cause notice to the assessee to revise the order passed by the Sales Tax Officer. However, by order dated January 3, 1996, he dropped the proceedings. While so, on January 2, 1998, the Commissioner, purporting to exercise the revisional power under Section 23(4)(a) of the Act and Rule 80 of the Rules, issued notice to show cause as to why the turnover determined by the Sales Tax Officer for the Assessment Yearshould not be enhanced. Challenging the validity of the said notice, the appellant filed O.J.C. No. 930/98 before a Division Bench of the High Court of Orissa. The High Court dismissed the writ petition on July 22, 2002 which is under challenge in this appeal.

Reasoning: 8. A perusal of clause (a) ofd, shows that the Commissioner is conferred with the power to revise any order made under the Act or the Rules made thereunder by any person other than the Tribunal appointed under(3) of section 3 of the Act to assist him, either on an application made by a dealer or any person or suo motu. The proviso thereto bars the exercise of revisional power on the application of a dealer or any person where remedy of appeal underion (3) of Section 23 has not been availed or where the revision was not filed within the prescribed period of limitation.A plain reading of this rule discloses that the Commissioner can exercise the revisional jurisdiction suo motu within the period specifiedin the case of an order passed by the Sales Tax Officer, within three years from the date of passing of the order and in the case of an order passed by the Additional Commissioner, Special Additional Commissioner or Assistant Commissioner, as the case may be, within two years from the date of passing of the order. The revisional jurisdiction can be exercised if the Commissioner, after calling for the records of the proceedings in which the order sought to be revised was passed, considers that the order is erroneous insofar as it is prejudicial to the interest of the Revenue. Where these jurisdictional facts are present to invoke the revisional power, the Commissioner has to provide the dealer or a person affected thereby an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, may revise any such order. There are two situations in which an order in question cannot be revised and they are: (1) where an appeal against the order is pending before the appellant authority under section 23, or (2) wherefor filing an appeal under section 23 has not expired. The same conditions will govern the exercise of the revisional power by the delegate of the Commissioner under Notification No.14171 dated the 3rd August, 1963. The notification, insofar as it is relevant for our purpose, says that with the prior approval of the State Government, the Commissioner has delegated his power and duties under the Act and the Rules framed thereunder as specified in the Schedule annexed thereto to Assistant Commissioner of Sales Tax and directed that the said powers and duties shall be exercised and discharged by the said Assistant Commissioner with their respective jurisdiction.Thus, it is clear that the power conferred on the Assistant Commissioner was under clause (a) of(4) of section 23 of the Act read with rule 80 of the Rules. The Commissioner has revisional power to call for the records and revise the orders not only of the Sales Tax Officer but also of the Assistant Commissioner, Additional Commissioner; the power that was delegated to the Assistant Commissioner was confined to the orders passed by the Sales Tax Officers. In the result the Commissioner retained his power to revise the orders passed by the Assistant Commissioner, Additional Commissioner and Special Additional Commissioner. However, in regard to the orders passed by the Sales Tax Officer, after the delegation, the Assistant Commissioner was competent to revise and, in fact, he did exercise the power to revise the order of the Sales Tax Officer, after issuing a show cause notice dated December, 13, 1995. If that be so, the power of the Commissioner (the delegator) under theprovisions has been exhausted by the Assistant Commissioner and the Commissioner cannot, in law, exercise the delegated power over again.14. It is no doubt true that the Commissioner is not denuded of the statutory power of revision after delegation, but that, in view of the said notification, only means that he can resume that power of cancel the delegation of revisional power to the Assistant Commissioner. That, by no stretch of imagination, can be construed to mean that once the orders have been examined under the revisional power by the Assistant Commissioner (the delegatee), the same orders can again be subjected to the revisional jurisdiction by the Commissioner.15. The attention of the learned Judges of the High Court was invited to an earlier decision of a Division Bench of the High Court in Orient Paper Mills vs. State of Orissa (1988) 70 STC 333 ) but they got over it referring to two judgments of this Court in Commissioner of Sales Tax vs. Halari Store (107 STC 579)  and State of Orissa vs. Krishna Stores (104 STC 594) . In our view, those judgments of this Court do not deal with the point in issue here. The Division Bench was, therefore, not right in not following the said decision of the coordinate bench which was binding on it. Further, yet another judgment of a Division Bench of the Orissa High Court in J.C. Budharaja vs. State of Orissa & Ors. (118 STC 140)  is brought to our notice. One of us (Honble Arijit Pasayat, CJ, as he then was) was a party to it. In that decision the point was exhaustively dealt with to hold that the Commissioner did not have power to revise the order under theprovisions, after the Assistant Commissioner has, in exercise of the delegated power, exercised the jurisdiction in respect of an order of the Sales Tax Officer. We find in that decision a reference to the judgment of this Court in State of Orissa vs. Commissioner of Land Records and Settlement, Cuttack (1998) (7) SCC 162 ) which virtually covers the point against the Revenue. In that case the statutory power of revision of Board of Revenue was delegated to the Commissioner. In para 25 of the judgment, it was laid down that the Board could not revise the orders passed by a delegatee, the Commissioner.