A.K. Ganguly, C.J.
1. Learned Counsel for the Revenue has very fairly produced the records. But, no affidavit has been filed in this case.
2. In this writ petition the petitioner is aggrieved by the notice dated 1.3.1985 under Annexure-1 issued to the petitioner for initiating a suo moturevision. The said notice is issued by the Assistant Commissioner of Sales Tax, Puri Range, Puri. By the said notice, the petitioner has been informed that the assessment for the year 1978-79 has already been completed thereby escaping some income on which the petitioner is liable to pay tax.
3. The petitioner is a company carrying on business in manufacturing of coconut fibre cushions, mattresses etc. Pursuant to the said notice, a suo motu revision under Section 23(4)(a) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as the 'Act') read with Rule 80 of the Orissa Sales Tax Rules, 1947 (in short, the 'Rules') was instituted and an order was passed therein on 6.3.1985. From the original records produced before us by the learned Additional Standing Counsel (Commercial Taxes), we find that the said order was signed by the concerned Assistant Commissioner of Sales Tax on 31.12.1985, the very person who purportedly passed the order on 6.3.1985. We fail to see the reason for signing the said order after more than nine months. Further pursuant to the said order which was allegedly signed more than nine months after the said order was passed, intimation thereof was sent to the petitioner one year thereafter i.e. on 30.12.1986 and the same was sent by registered post which was received by the petitioner on 1.1.1987. Therefore, the order which was allegedly passed on 6.3.1985 and signed nine months thereafter and dispatched one year thereafter was obviously received by the petitioner more than one year and nine months after it was passed.
4. This Court condemns such reckless and irresponsible action on the part of the Revenue which cannot justify their conduct.
5. This Court is of the opinion that considering the important nature of the function which the revenue authorities are called upon to discharge it is expected to act with a greater sense of urgency and responsibility. This is more so when the authorities are seeking to reopen completed assessment, inter alia, on the ground that the income has escaped the assessment. This Court is reminded of the repeated observations given by the Hon'ble Supreme Court that the authorities exercising quasi-judicial function which has the effect of interfering with the petitioner's right to property or their valuable rights, must act with the due sense of responsibility and in public interest. The facts of this case disclose that while acting in exercise of the statutory power, the authority concerned has purportedly not kept in the mind these salutory principles. The action of the opposite parties concerned is certainly not reasonable in the facts stated above. Non-filing of the affidavit by the authorities concerned shows gross lethargic attitude on their part in the discharge of their duties even pursuant to Court's directions.
6. Now, coming to the question of legality of the said exercise, this Court finds that the authorities are also guilty of acting in violation of the statutory provisions. In the case of K.C. Mohta and Anr. v. Assistant Commissioner of Sales Tax and Anr. reported in Vol. 41 (1978) STC 17, a Division Bench of this Court observed where in a taxing statute there is no express provision to assess escaped turnover, the revisional authority may have the power to assess escaped turnover. But, in a case where the statute makes specific provision like Section 12 (8) and Rule 23 enabling the Sales Tax Officer to assess the escaped turnover after following a special procedure, the revisional jurisdiction under Rule 80 cannot be construed to embrace such power to assess escaped turnover. We are in respectful agreement with the aforesaid principles laid down by the Division Bench of this Court. This Court is informed by the learned Counsel for the parties that the aforesaid judgment of the Division Bench still holds the field and the same has not been overturned by the Hon'ble Supreme Court.
7. Possibly in order to overcome the aforesaid ratio in the case of K.C. Mohta, amendment was brought in the said Act in 1983 by Act 23 of 1983. As a result whereof by Section 16 of Act 23 of 1983 an explanation has been added to Section 23(4)(a). The said Explanation is to the following effect:
Explanation - Any provision contained elsewhere in this Act which provides for determination of any specific matter shall not debar the Commissioner from determining such matter in exercise of the powers conferred upon him under this subsection.
8. It has not been argued by the learned Counsel for the Revenue, as possibly it could not be argued, that the said Explanation has retrospective operation.
9. It is well known that normally a statute operates prospectively. The Legislature in its plenary power can also legislate retrospectively, but in such cases the Statute must say so or it must appear by necessary implication. (See Keshavan Madhava Menon v. The State of Bombay reported in : 1951CriLJ680 , at page 130). This principle has been subsequently reiterated by the Hon'ble Supreme Court repeatedly. Applying the said principle to the aforesaid Explanation, this Court cannot come to the conclusion that the Explanation operates retrospectively. Since the Explanation was introduced with effect from 12.8.1983, relying on the same the matter relating to escapement of tax for the assessment year 1978-79 cannot be reopened. The aforesaid Explanation cannot dilute the ratio in the case of K.C. Mohta. The decision in K.C. Mohta squarely applies to the present case. So the initiation of the suo motu revision as has been done under the impugned notice and the impugned order passed thereon are not permissible in view of the decision of this Court in K.C. Mohta's case.
10. Learned Counsel for the Revenue has made a feeble attempt to justify the action of the authority by saying that the period of limitation for reopening the assessment is five years. In that case even if we accept that the Explanation is prospective, initiation has been done within five years from the date of the assessment order which is for the year 1978-79. We are afraid that the aforesaid attempt also cannot succeed having regard to the statutory provision which was holding the field at the relevant point of time, i.e. in 1978-79.
11. For the assessment year 1978-79 the relevant provision in the said Act, namely Section 12(8) of the Act, is as follows:
(8) If for any reason the turnover of a dealer for any period to which the Act applies has escaped assessment or has been under-assessed or where tax has been compounded when composition is not permissible under this Act and the Rules made thereunder, the Commissioner may at any time within thirty six months from the expiry of the year to which that period relates call for a return under Sub-section (1) of Section 11 and may proceed to assess the amount of tax due from the dealer in the manner laid down in Sub-section (5) of this Section and may also direct, in cases where such escapement or under assessment or composition is due to the dealer having concealed particulars of turnover or having without sufficient cause has furnished incorrect particulars thereof, that the dealer shall pay, by way of penalty, in addition to the tax assessed under this sub-section, a sum not exceeding one and a half times of the said tax so assessed.
(emphasis supplied)
It is clear that the period of limitation at that point of time was only 36 months, i.e., three years. The period of three years from 1978-79 has expired much prior to 1983 when the proceeding was suo motu initiated. The notice for initiating a suo motu revision was issued on 6.3.1985. It is also not in dispute that by way of amendment to Section 12(8) the period of 36 months has been substituted by five years and the said provision has come into effect in 1983 by Section 9(c) of Act 23 of 1983 and the said amendment is also prospective.
12. We, therefore, hold that at the time of issuing the notice for initiation of suo motu revision the limitation of 36 months was in force. Therefore, the argument of the learned Counsel for the Revenue also fails.
13. For the reasons aforesaid, we allow the writ petition, set aside the notice dated 1.3.1985 under Annexure-1 for initiating suo motu revision in respect of the escaped assessment for the year 1978-79 so far as the petitioner is concerned and also set aside the subsequent order dated 6.3.1985 passed by the Assistant Commissioner of Sales Tax, Puri Range on the basis of said notice. The Revenue is directed to act in terms of the original assessment order.
Misc. Case Nos. 10080 of 1997 and 607 of 2006 are also disposed of.