ORDER
Puttaswamy, J.
1. Whether the suo moto revisional power conferred by Section 22-A(1) of theKarnataka Sales Tax Act, 1957 (Karnataka Act 25 of 1957) ('the Act') has been exercised or initiated within a period of four years from the date of the order or not as required by Section 22-A(2) of the Act and therefore barred by time or not is the short and interesting question that arises for determination in these cases. In order to appreciate the same, it is necessary in the first instance to notice the facts of the case in Writ Petition No. 16098 of 1981 in some detail as illustrative only and the other cases in general.
2-1. WRIT PETITION NO. 16098 OF 1981 : For the assessment years 1970-71 the purchase turnovers of paddy effected by the petitioner amounting to Rs 12,69,286-25 and Rs. 29,93,521-26 was brought to tax under the Act by the Commercial Tax Officer, Gangavathi ('CTO') in hisassessment orders made on 29-9-1973 and 30-4-1974. Against the said orders of the CTO, the petitioner filed appeals under Section 20 of the Act before the Deputy Commissioner of Commercial Taxes (Appeals), Bellary ('DC') inter alia con-tending that the paddy converted into rice had not undergone manufacturing process and his purchase turnovers were not exigible to tax under Section 6 of the Act. On 14-3-1975 the DC following a Division Bench ruling of this Court in The State- v. - B. Raghurama Setty and Others which, had been challenged by the State in an appeal before the Supreme Court and pending, allowed the same. On 24-3-1981 the Supreme Court allowed the said appeal filed by the State and has reversed the decision of this Court, since reported as State of Karnataka- v. - B. Raghurama Setty.
2-2. On 18-3-1977, the DC forwarded the records of his office in the appeal filed by the petitioner to theCommissioner of Commercial Taxes, Karnataka, Bangalore, ('Commissioner') 'for needful action', which was received by him on 23-3-1977. On receipt of the records in the above appeal and the connected cases, the office prepared a note thereon as hereunder and submitted the same to theCommissioner :
' FILE No. RVN 118/77-78
Sub: Revision of cases in which conversion of paddy into rice whether amounts to manufacture.
The DCCT, Bellary has sent the following cases and has suggested to revise the orders. The point in these cases are conversion of paddy into rice whether amounts to manufacture or not. The order date and the date within which section 22-A can be exercised are indicated below :
Sl. No.
Name ofthe Assessee
Date of Order
Time for initiation underSection 22/A
1.
M/sSaraswathi Trading Company, Koppal
4-11-74
3-11-78
XX
XX
XX
3.The above cases may lie over till the Supreme Court's decision in B. R. Setty's case is received as we cannot initiate action under Section 22-A for the present.'
Saraswathi Trading Company, Koppal, Sl. No. 1 in the 'note' is the petitioner in Writ Petition No. 16098 of 1981. On an examination of the said note and the records, the Commissioner on 8-7-1977 approved the proposal made at para 3 of the note. On the Supreme Court reversing the decision of this Court, the Commissioner has issued show cause notice No. SMR 10 & 11/1981-82 dated 27-5-1981 to the petitioner under Section 22-A of the Act proposing to revise the order of the DC and restore the order of the CTO, the validity of which is challenged by it in Writ Petition No. 13992 of 1981 before this Court under Article 226 of the Constitution.
2-3. In all other cases also except for the periods, the turnover amounts, the date of the orders, theforwardly and receipt of records being naturally different, the facts are similar to the facts in Writ Petition No. 16908 of 1981. The differences in the other cases are not material for thedetermination of the question that arises in these cases.
3. All the petitioners have challenged the respective show cause notices received by them on the ground that the proceedings to revise the appellate orders had not been exercised or initiated by the Commissioner within a period of four years from the date of the order and, therefore, they are wholly without jurisdiction and illegal
4. In justification of the show cause notice issued to thepetitioner in Writ Petition No, 13992 of 1981, the Commissioner who is the sole Respondent in the case has filed his return. Without disputing the correctness of the facts stated by the petitioner in that Writ Petition, the Respondent has urged that he had exercised his power or had initiated the proceedings within a period of four years from the date of the order and the impugned show cause notice was within his jurisdiction and power and was not barred by time.
5. Sri. K.Srinivasan Learned Advocate has appeared for the petitioners in all the cases except in Writ Petition No. 21641 of 1981 Sri K.R. Prasad, Learned Advocate has appeared for the petitioner in Writ Petition No. 21641 of 1981. Sri S. Rajendra Babu, Learned Government Advocate has appeared for the respondent, in all the cases.
6. In Mohamed Samiullah - v. - Commissioner of Commercial Taxes a Full Bench of this Court has upheld the validity of Section 22-A of the Act and also the power of the Commissioner to revise the appellate orders of the appellate authorities subordinate to him. In K.Subba Rao- v. - Commissioner of Commercial; Taxes, Mysore, Bangalore and Busunur industries- v. - State of Karnataka, this Court has also ruled that when the Commissioner calls for records for examination under Section 22-A of the Act, he exercises the power of revision conferred by that Section and theproceedings to revise need not be completed within a period of four years from such initiation or the date of the order sought to be revised. We are of the view that the contentions urged by Sri Srinivasan contrary to what this Court has already held in Busunur Industries' case cannot be upheld for the very reasons stated in that case. We, therefore, reject them.
7. Sri Srinivasan has urged that there was no exercise or initiation of suo moto revisional proceedings by theCommis2. : ILR1985KAR481 3. 19 STC 2574. : ILR1985KAR1322 sioner under Section 22-A(2) of the Act within a period of four years from the date of the appellate order of the DC and the notices issued even, on the principles enunciated by this Court in Subbarao's and Busunur Industries cases, were clearly barred by time and were wholly withoutjurisdiction and illegal.
8. Sri Babu in refuting the contention of Sri Srinivasan as urged that the terms 'shall be exercisable' or 'initiation' were comprehensive enough to include cases where the Commissioner had received the records by any process, examines them, applies his mind ; as in the present cases ; and the/period of limitation had to be computed from such date only and so construed the impugned notices were in time.
9. We first consider it necessary to record our finding on the fact situations and then deal with the legal contention that arises for determination.
10. After the appellate authority made its orders that authority itself, for reasons that are not material, forwarded its records to the Commissioner 'for needful action'. There is no dispute that the Commissioner did not call for the records at any time. But, the Commissioner understood the records received by him as received for purpose of exercising the power of revision conferred on him under Section 22-A of the Act and on such examination directed the matters be pursued after the disposal of the appeal filed by the State before the Supreme Court in Raghuram Setty's case. On that decision, the Commissioner did not issue show cause notices till the period of four years from the date of the order had elapsed and has issued such notices on the disposal of the appeal filed by the State in Raghurama Setty's case before the Supreme Court. It is in these circumstances theCommissioner issued notices later. In his show cause notice issued to the petitioner in Writ Petition No. 16098 of 1981, the Commissioner has stated that the same was not barred by time for the following reason :
'8. In your case the records have been received for examination in this office on 23-3-1977 which date is well within the period of limitation and, therefore, action under Section 22-A in your case is not barred by limitation.'
In other cases also, the Commissioner specifying the necessary particulars has staled this very reason. An examination of the records produced by the Learned GovernmentAdvocate amply bare out the correctness of these facts.
11. Section 22-A(1) of the Act empowers the Commissioner to call for the records and examine them. When the records are received by him on the very authority suo moto submitting them ; as in the present cases ; it is some what odd to hold that the Commissioner must formally call them and then only examine them for purposes of Section 22-A of the Act. The power to call for records is conferred on the Commissioner to secure records and examine them and not for any other purpose. When the records are before the Commissioner, as in the present cases Section 22-A cannot be construed asdisabling the Commissioner to examine them and initiate appropriate action under that Section. Section 22-A clearly enables the Commissioner to examine the records and initiate appropriate action thereon. We are, therefore of the view that it was open to the Commissioner to examine the records received by him, though he had not called for them, examine them and initiate further proceedings under Section 22-A of the Act.
12. In Subbarao's and Busunur Industries cases, this Court was dealing with cases where the Commissioner had called for records exercising the power conferred on him by Section 22-A or the earlier corresponding provision of the Act. On those facts, this Court ruled that the initiation commences with the very act of calling for records. Every one of the observations made in those cases, which are not in conflict with what we have expressed earlier have to beunderstood as enabling the Commissioner to exercise his powers under Section 22-A, even in a case where he had not called for the records for initiating action under that Section, as in the present cases. We are of the view, that this power is available to him even in a case where the DC or any other subordinate authority submits the records to initiate action under Section 22-A. As to how he receives the records does not make any difference for the exercise of the power under Section 22-A of the Act.
13. What emerges from the above discussion is that it was open to the Commissioner to examine the records received by him though he had not called for them and exercise the power of revision conferred on him by Section 22-A of the Act. But, this conclusion does not necessarily answer the question of limitation, which we now proceed to examine, which turns on the construction of Section 22-A(2) of the Act.
14. In Mohamed Samiullah's case, to ascertain the true scope and ambit of Section 22-A(1) of the Act, the Full Bench has referred to some of the rules of construction bearing on the same and to the Full Bench ruling of this Court in C. Arunachalam- v. - Commissioner of Income Tax that has explained some of them. In ascertaining the true scope and ambit of Section 22-A(1), we must necessarily have regard to them and the progressive rules of construction of statutes felicitously expressed by Lord Denning in Seaford Court Estates Limited- v. - Usher6 approved by the Supreme Court in State of Karnataka and others - v. -. Hansa Corporation and K. P. Varghese - v. - I.T.O. Ernakulam and another. In Arunachalam's case, the Full Bench has ruled thus:
1949(2) All. E.R. 155
131 ITR 587
'So far as the fiscal statutes are concerned we must remember one more principle. The provisions in a fiscal statute are not to be so construed as to furnish a chance of escape and a means of evasion. In case of doubt, the fiscal statute should be construed in favour of and beneficial to the subject.'
Bearing this and the principles enunciated in the above cases, we propose to ascertain the true scope and ambit of Section 22-A(2) of the Act.
15. Section 22-A(2) of the Act that is material reads thus:
'The power under sub-section (1) shall be exercisable only within a period of four years from the date of the order sought to be revised was passed.'
This power conferred by Section 22-A(1) of the Act is exercisable within a period of four years from the date of the order sought to be revised. Section 22-A(2) of the Act that fixes the period of limitation employs the term'exercisable' which is a very comprehensive terra. We need hardly say that the meaning we attach to that term should not be a narrow, rigid and pedantic but one that achieves thepurposes and object of the Act.
16. The term 'exercisable' derived from the word 'exercise' is defined as (i) 'capable of being exercised, employed or enforce' and (ii) 'capable of being exercised' in the Oxford English Dictionary, Vol III page 401 and Webster's Third New International Dictionary - unabridged Vol. I page 795 respectively. These very dictionaries and 'Words and Phrases' - Permanent Edition Vol. 15A, define the term 'exercise' as hereunder :
'5.d. To perform or practise acts of (Justice, cruelty, oppression, duplicity, etc)
e. To discharge, fulfill (functions; to exert, wield, possess dominion jurisdiction, etc.)
(The Oxford English Dictionary Vol. III page 402)
'(1) exercise : la : the act of bringing into play or realizing in action ; Exertion, use (avoid accidents bythe of foresight) (the violent .. ; of royal authority T.B. Macaulay) b : the discharge of an official function or professional occupation (- of his judicial duties)...
(2) Exercise : lb : to carry on (an occupation) or carry out thefunctions of (an office)......'
(Webster's Third New International Dictionary - Unabridged Vol. 1 page 795)
' To exercise discretion is to choose between doing and not doing a thing, the doing of which cannot be demanded as an absolute right of the party asking it to be done. The proposition for the exercise of judicialdiscretion is always based on a given state of facts and addresses itself to the favour of the Judge. It is not based on the right of the party seeking to have the thing done, founded in the law applicable to the facts involved, hut is always an appealexgratia. Alden vs. Hinton, 6 D.C. 217.
'Exercise' is put to action........'
(vide: Words and Phrases-Permanent Edition-Vol. 15A page 366)
On these meanings that are apposite in the context, the term exercisable must, at any rate, mean taking action or doing something, if not doing something with which aspect, we are not concerned in these cases. On these meanings, theapplication of mind by the Commissioner and his decision to await the decision of the Supreme Court, clearly falls within the meaning of the term 'exercisable' or 'initiation' used in the two cases of this Court noticed earlier. If theCommissioner had thus initiated action within four years as ruled in Subba Rao's andBusunur Industries cases, it is undoubtedly open to him to complete the same even after the expiry of four years.
17. When the Commissioner examined the records and decided to await the decision of the Supreme Court, we cannot say that he committed blunder or an illegality. All that one could reasonably contend is that he should haveat least issued show cause notices and then awaited the decision of the Supreme Court or pursued the matter after the Supreme Court rendered its decision in Raghuram Setty's case. So long as the appeal filed by the State in Raghuram Setty's case was pending before the Supreme Court, theCommissioner could not have done anything in the matter. At the highest, the issue of a notice for purpose of saving limitation, even if insisted, was only a formality and not a matter of substance. Section 22-A(2) of the Act does not insist on a formal and technical compliance. On the foregoing we are of the view that there was a proper and substantialcompliance of Section 22-A(2) of the Act. For all these reasons, we see no merit in this contention of Sri Srinivasan and we reject the same.
18. We have earlier found that the DC allowed the appeals of the petitioners following the ruling of this Court in Raghurama Setty's case which has been reversed by the Supreme Court on 24-3-1981. In the impugned notices, the Commissioner exercising his suo motu power of revision proposes to bring the assessment orders in conformity with the ruling of the Supreme Court, which is binding on all Courts and authorities. Any attempt by this Court in exercise of its extraordinary Jurisdiction to interfere with such a course of action, far from advancing the cause of justice, would definitely defeat the cause of justice and will not be in accord with the principles enunciated by the Supreme Court in Shenoy and Company, Bangalore and others v. Commercial Tax Officer, : [1985]155ITR178(SC) , Circle II, Bangalore and others. Even assuming that there is any merit in the contention of the petitioners on the question of limitation, then also these are not fit cases in which this Court should exercise its extraordinaryjurisdiction in their favour under Article 226 of the Constitution.
19. In the light of our above discussion, we hold that these writ petitions are liable to be dismissed. We, therefore dismiss these writ petitions and discharge the rule.