ORDER
P. Venkatarama Reddi, ACJ
1. This Batch of Special Appeals filed by the assessce under Section 23 of A.P. GeneralSales Tax Act arise out of the orders passed by the Commissioner of Commercial Taxes in exercise of power of revision vested in him under Section 20(1) of the said Act. In exercise of such power, the Commissioner by the impugned orders daled 31-7-1998 set aside the order of the appellate Deputy Commissioner (CT) and restored the orders of the Assessing Authority. The Appellate Deputy Commissioner by his common order dated 8-8-1994 set aside the assessments made by the Commercial Tax Officer on the disputed turnover relating to the Assessment Years - 1983-84, 1984-85, 1988-89 and 1989-90. For the Assessment Years - 1990-91 and 1991-92, a similar order was passed by the appellate authority in July, 1994. The appellate authority granted relief on the disputed turnover representing the tax assessed on the sales of wires. The relief was allowed on the ground that the wire rods from which wire was drawn suffered tax in the State at the point of sale to the appellant and therefore, no further tax need be paid on the resullant wire under Entry 2 to the III Schedule of the APGST Act. This relief was granted on the basis of the decision of the Supreme Court in Tehngana Steel Industries v. State of A.P., 93 STC 187, which was decided on 4-3-1994. The Supreme Court took the view that the wire rods and wires were treated by the Central Sales Tax Act and the APGST Act as a single item of declared goods and therefore, if the wire rods purchased by the appellants suffered sales tax, the tax cannot be realised once again on the sale of wires, because it is a single point levy. The Supreme Court reversed the judgment of a Division Bench of this Court which took the view that wires and wire rods are separate taxable commodities and their inclusion in one sub-item does not preclude imposition of sales tax on the sales of both. The Supreme Court allowed the appeals filed by the appellants herein. It may be mentioned that pending Appeals in the Supreme Court against the judgment of this High Court, the Supreme Court permitted the assessments and recovery of tax subject to any order ofrefund that may be ultimately passed. While disposing of the Appeals, the Supreme Court observed, 'we leave it to the appellants to work out their remedies relating to refund in accordance with the provisions contained in this Section' - (Section 33-B). It is not clear whether their Lordships meant to refer to Section 33-B or Section 33-BB, both of which provide for refund in certain situations. Be that as it may. one of the courses open to the appellants was to claim refund tinder Section 33-BB pursuant to the judgment of the Supreme Court. The subject-matter of the writ petitions out of which Appeals were filed in the Supreme Court, was not confined to any particular Assessment Year and would have very well comprehended the assessments allowed to be made pendente lite. However, the appellants have adopted the course of filing the appeals before the Appellate Deputy Commissioner with petitions to condone the delay extending upto three years. Some appeals were filed even before the judgment of the Supreme Court and some were filed soon after the decision of the Supreme Court in Telangana Steel Industries (supra). The appellate authority condoned the delay by passing a cryptic order, heard the appeals on merits and disposed of the same. Pursuant to the order of the appellate authority, the Commercial Tax Officer concerned granted refund of tax. It is this order of the appellate Deputy Commissioner that has been revised by the Commissioner under Section 20(1) of the APGST Act.
2. The Commissioner was of the view that the condonation of long periods of delay was not warranted, moreso when it results in undue enrichment of the appellants for the reason that tax burden had been passed on to the buyers. The second ground of revision is that the decision of the Supreme Court in Telangana Industries case (supra) is no longer the 'final word on the subject' and the wires and wire rods shall be treated as separate taxable commodities in view of the ratio of a later decision of the Supreme Courtin K.A. Anwar ami Co. v. State of Tamil Nadu, 108 STC 258. According to the Commissioner, the judgment in Telangana Industries was disapproved by the Supreme Court.
3. Before proceeding further, it must be made clear that the Commissioner did not revise the order granting refund as a sequel to the appellate authority's order, though such refund was granted without any enquiry into the question whether the assessee passed on the tax to the buyers. Section 33-B envisages such enquiry to be made.
4. On an anxious consideration of the entire issue and on taking a holistic view of the matter, we have reached the conclusion that the revisional order of the Commissioner as well as the order of the appellate authority are not sustainable in most of the cases whereas in some other cases, the Commissioner's orders should be set aside on the ground of time-bar or upheld for other reasons.
5. One of the factors which persuaded the Commissioner to revise and reverse the order of the appellate Deputy Commissioner is that the authority of Telangana Industries case (supra) has been shaken by the later decision in Anwar's case (supra). We cannot endorse this view taken by the Commissioner, which if accepted would deal a fatal blow to the binding effect of the pronouncement of the Supreme Court concerning the very same issue.
6. It is true that a three-Judge Bench of the Supreme Court while interpreting the Entry - 'hides and skins whether in a raw or dressed state' was not inclined to place reliance on the Telangana Industries case (supra) in view of the earlier Constitution Bench decision explaining the difference between raw hides and skins and dressed hides and skins. It is equally true that the ratio of the decision in Telangana Industries case (supra) is open to question in the light of the judgment in Anwar's case (supra). But,we do not think that the Commissioner can ignore a decision rendered inter parties in the context of very same Entry under which the appellants were subjected to tax and prefer to follow the decision in Anwar's case dealing with a different taxation Entry. The Commissioner is bound by the decision in Telangana Industries and he cannot find fault with the appellate authority in following that judgment. The observation of the Commissioner that each assessment is a 'separate order and must be dealt with independently' cannot be countenanced. Though in taxation Law, the principle of res judicala has no application to an assessment in respect of a different assessment year, as already noticed, the subject-matter of dispute before the High Court and the Supreme Court was not confined to any particular assessment order or orders. A general prayer was made not to levy tax under the APGST Act on the sales of wires derived from the tax-suffered wire rods. The fact that the assessments were made during the pendency of the SLP/ Appeals in the Supreme Court pursuant to the liberty given by the Supreme Court, is yet another pointer that the dispute was not confined to any particular assessment year. In such a situation, to ignore the law laid down by the Supreme Court in Telangana Industries case (which has not been specifically overruled by the Supreme Court), amounts to negation of the Constitutional mandate under Article 141. Therefore, this ground of revision cannot be sustained.
7. The second infirmity in the order of the Commissioner is that his finding in regard to collection of tax by the appellants from their buyers is more in the realm of surmise. The Commissioner may be right in saying that the mere fact that tax was not shown to have been charged separately in the sate bills is not a conclusive factor -though it may be one of the relevant factors. The impugned order of the Commissioner does not show that the Commissioner called for the accounts or other relevant documents or that he examined the price structure so asto see whether any clement of tax is embedded therein. The observation of the Commissioner that tax burden was passed on to the buyers is a mere ipsi dixit. No specific reasons were given except brushing aside the sale invoices as not affording reliable basis to give rise to an inference of non-collection of tax.
8. Thirdly, the Commissioner did not consider and record a specific finding whether the grounds pleaded by the assessee constitute sufficient cause for condonation of delay.
9. While the above infirmities are writ large on the face of the Commissioner's order, we find a more serious legal flaw in the order of the appellate authority. By setting aside the order of the Commissioner, we cannot at the same time allow an illegal order of the appellate Deputy Commissioner to remain. The appellate authority entertained the appeals and disposed them of on merits by condoning the delays extending upto 3 years. The delay was condoned by a cryptic and laconic order which reads - 'delay condoned and appeal admitted.' There was no discussion and no indication as to what weighed with him in condoning the long delay. The appellate authority exercising quasi judicial powers is supposed to arrive at the decision judiciously and to pass a speaking order. The approach adopted by the appellate authority in the instant cases is, to say the least, casual and careless. In a matter involving heavy delay in filing the appeal, the satisfaction of the appellate authority was recorded in a single word. Such an act of the appellate authority cannot but be characterised as arbitrary and callous. Whether or not the reasons given by the appellants in the affidavits filed in support of condone delay petitions were relevant, factually correct and constitute sufficient cause for condonation of delay, whether the assessee was labouring under a mistake of law and whether the assessee had passed on the tax burden to its buyers and if so what is the effect thereof on the question of sufficient cause, are all matterswhich should have been discussed by the appellate authority. The omission to do so and the manner of disposal of condone delay applications has an inextricable impact on the orders passed on merits because such orders would not have been passed but for condonation of delay. Thus, the failure to deal with and dispose of condone delay applications in a manner expected of a quasi-judicial functionary deals a fatal blow to the ultimate orders passed in appeals and we therefore set aside the orders passed in appeals and we therefore set aside the orders passed by the appellate Deputy Commissioner as well and direct the said authority to pass reasoned orders after de novo consideration of condone delay applications. On such consideration, if the condone delay applications are allowed, the appellate authority will entertain the appeal and dispose them of on merits. We would like to make it clear that the appellate authority is bound to follow the provisions of law contained in pre-amended Section 19(1) and he cannot reject the application for condonation of delay on the ground of outer time limit of 60 days introduced by means of a subsequent amendment. The above is the order in Special Appeal Nos.35, 37, 40, 46 and 47 of 1998 which we hereby allow and remit the cases to the appellate authority for fresh disposal as per the directions given above.
Special Appeals Nos.34, 42, 43 and 49 of 1998:
These appeals relate to the assessment years 1983-84 and 1984-85. The condonation of delay in regard to the appeals filed for these years is, in our view wholly unwarranted and amounts to abuse of the discretionary power vested in the appellate authority, and these need not be remanded. The Special Appeals deserve to be dismissed straightaway.
10. For the said years, assessments were made and appeals were filed after the decision of the High Court to which the appellant was a party and during the pendency of the appealsfiled by the appellants and others in the Supreme Court, no petition for condonation of delay was filed nor any reasons set out for the belated filing of the appeals. The condone delay petitions supported by affidavits were filed only after the decision of the Supreme Court in Telangana Industries case (supra). It is surprising how the un-numbered appeals were kept pending for so long a time even without a petition for condonation of delay that had occurred by the date of filing of the appeal. Even in the affidavit filed, no explanation was attempted to be given as to why the appeals were filed in April, 1990 with a delay of three years and having filed the appeals, why they were not pursued and allowed to remain in cold storage for four long years thereafter. If the appellant thought that there was no use in filing the departmental appeals during the pendency of the appeals in the Supreme Court and that it is a frivolous exercise there is no reason why it should have thought of filing the appeal in the year 1990 and why the appeals should not have been filed earlier. No such explanation is forthcoming in the affidavits filed in April, 1994. The conduct of the assessee, to say the least, is not bona fide and apart from the fact that filing of appeals in the year 1990 does not fit in with the explanation of the appellant that it could not prefer appeals in view of the adverse decision of the High Court and the pendency of the appeals in the Supreme Court. The explanation sought to be given by the learned Counsel for the appellants in the course of arguments that the two appeals for those two years were filed by way of abundant caution cannot be accepted, moreso, when there is no such averment in the affidavit filed to explain the delay and for four long years, the appellants did not think it fit to explain the delay at all. In these circumstances, we do not think that the ratio of the decision of Division Bench in State of A.P. v. Venkataramana Chuduva Merchants, 57 STC 179, would apply. Therefore, we are of the view that the appellate authority committed an illegality or impropriety incondoning the delay in these two appeals relating to the assessment years 1983-84 and 1984-85. He should have rejected the appeals in limini on the ground of delay. The appeal orders passed on merits consequent upon the condonation of delay, cannot therefore, be allowed to stand. The Commissioner is justified in revising such illegal orders. Ve therefore dismiss the Special Appeal Nos.34, 42, 43 and 49 of 1998.
Special Appeal Nos.39, 41, 45. 53 and 54 of 1998:
These appeals are to be allowed for the reasons that the revision is barred by time.
11. Under Section 20(1), power is vested in the Commissioner of Commercial Taxes to suo motu call for and examine the record of any order passed or proceeding recorded by subordinate authority under the provisions of the Act, if such order or proceeding is prejudicial to the interests of the revenue. The Commissioner 'may make such enquiry or cause such enquiry to be made and subject to the provisions of the Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order in reference thereto as it thinks fit'. Sub-section (3) enjoins that in relation to an order of assessment, the power under sub-section (1) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer. The Commissioner passed the order of revision on 31-7-1998 which admittedly goes beyond the period of four years from the dale of service of the appellate order. To get over this difficulty, the learned Government Pleader endeavoured to argue that the period of four years is the outer-limit prescribed to initiate the revision proceedings and it is not necessary that the final order of revision shall be passed before the expiry of four years from the date of service of the order or proceeding to be revised. The very samecontention advanced on behalf of the State was negatived by a Division Bench of this Court in State of A.P. v. Toshiba Anand Batteries Ltd., (AP). , on a review of all the authorities. The learned Government Pleader submits mat the said pronouncement of the Division Bench requires reconsideration in the light of the decision of the Supreme Court in State of Punjab v. Tara Chand Lajpat Rai, : [1967]3SCR10 and that of the Mysore High Court in Subba Rao v. Commissioner of Commercial Taxes, (1967) 19 STC 257. Having regard to the difference in language employed in sub-sections (2) and (4) of Section 11 of Punjab General Sales Tax Act which was considered by the Supreme Court, we do not think that the ratio of the decision of Supreme Court applies to Section 20(3) read with Section 20(1) of the APGST Act. The Mysore High Court's view was dissented from by the Division Bench of this Court in Toshiba Anand's case (supra). Having regard to the fact that the language of Sections 20(1) and 20(3) is susceptible of interpretation that the period of limitation of four years could as well apply to the actual passing of the final order of revision and in view of the consistent view taken by this Court, we are not inclined to reconsider the decision in Toshiba Anand's case (supra) and unsettle the legal position declared by this Court, more especially when it is likely to give a handle to the revisional authority to unduly prolong the revision proceedings by inaction or otherwise. We should, therefore, allow Special Appeal Nos.39, 41, 45, 53 and 54 of 1998. No costs.