Alankar Bar and Hotel Alankar Vs. Karnataka Appellate Tribunal (Sales Tax Unit) and Others - Court Judgment

Excerpt:
- labour & services. stagnation increment: [cyriac joseph, cj & b.s. patil, jj] not given as there was departmental proceedings and that the employee was penalized by one increment for misconduct - held, stagnation increment is subject to the condition that the government servant should have satisfactory record of service . petitioner having suppressed the fact as to departmental proceedings before his superannuation is not entitled to any relief. - consequently, the bar contained in sub-section (3)(b) of section 22a was clearly attracted.ordertirath s. thakur, j.1. assessment for the year 1975-76 was completed against the petitioner by the assessing authority by his order dated 4th of april, 1978. the petitioner appealed to the deputy commissioner and succeeded in having the matter remitted back to the assessing authority for a fresh look. a fresh order of assessment was then made on 6th of january, 1990. aggrieved, the petitioner preferred an appeal against the said order also, which was accepted in part by the appellate authority by its order dated 20th of may, 1990. dissatisfied the petitioner preferred a second appeal before the karnataka appellate tribunal on 31st of july, 1990, which was disposed of on 8th of october, 1993. in the meantime, the joint commissioner of commercial taxes (vigilance) summoned the records of the assessment proceedings and the appellate order on 26th of july, 1990 and decided to issue a notice to the petitioner on 8th january, 1991 calling upon the petitioner to show cause why the assessment as concluded by the assessing authority and altered in part by the appellate authority should not be set aside the same being in his opinion erroneous and prejudicial to the interest of the revenue. the petitioner is aggrieved of the said notice and has called in question the validity thereof in the present writ petition.2. mr. hemraj, learned counsel appearing for the petitioner, argued that the order passed by the assessing authority had merged in the order of the appellate authority, which had in turn been assailed in appeal before the appellate tribunal. a suo motu revision was therefore permissible only against the appellate order of the deputy commissioner, but keeping in view the provisions contained in section 22-a(3) of the karnataka sales tax act, the said powers could not be invoked by the joint commissioner since the appellate order had been made the subject-matter of an appeal before the appellate tribunal. inasmuch as the notice issued by the joint commissioner contended the learned counsel proposes to revise an order, which has been the subject-matter of an appeal under section 22 of the act, the same was without jurisdiction.3. section 22a of the act deals with the revisional powers of the commissioner and the joint commissioner. sub-section (3) of section 22a as it stood before the amendment and on the date the impugned smr notice was issued was as under :'the joint commissioner or the commissioner shall not exercise any power under the sub-section (1) or sub-section (2), as the case may be, if, - (a) the time for appeal against the order has not expired; (b) the order has been made the subject-matter of an appeal under section 20 or section 22 or of a revision in the high court; or (c) more than four years have expired after passing of the order sought to be revised.' 4. a plain reading of the above provision would show that the joint commissioner or the commissioner is debarred from exercising the suo motu revisional powers available under section 22a, in three distinct situations covered by sub-clauses (a), (b) and (c) of sub-section (3) (supra). in so far as sub-clause (a) of section 22-a(3) is concerned, it is obvious that the same operates as a temporary bar against the exercise of revisional powers limited in point of time till the period prescribed for filing an appeal expires. the bar under sub-section (3)(a) would disappear no sooner the period of limitation is over. in so far as the bar that is created by section 22-(a)(3)(b) is concerned, the same is permanent in nature. the joint commissioner cannot exercise the smr powers otherwise available to him in cases where the order sought to be revised has been made the subject-matter of an appeal before the tribunal under section 22 or before the high court in a revision. in the instant case, the petitioner had preferred an appeal against the appellate order on the 31st of july, 1990. on the date the joint commissioner issued the impugned notice, the order sought to be revised had already been made the subject-matter of an appeal under section 22 of the act. consequently, the bar contained in sub-section (3)(b) of section 22a was clearly attracted. it made little difference whether the suo motu revision proceedings started by the joint commissioner were directed only against that part of the order which had gone in favour of the petitioner and was not therefore the subject-matter of any controversy before the tribunal. the bar contained in section 22-a(3)(b) is applicable even in cases where the order under challenge before the tribunal is one partly in favour of the assessee and partly against it. that is because even when the appeal may have been filed only against that part of the order, which has gone against the assessee, the tribunal can in exercise of its powers under section 22(2-a) of the act entertain cross-objections in the manner prescribed calling in question even that part of the order, which has gone in favour of the assessee-appellant. the tribunal thus has the authority to look into the validity of the order in its totality and grant relief to either one of the two parties before it subject of course to the procedural formalities and the safeguards being followed in the manner prescribed. that being so, the entire order passed by the appellate authority shall be deemed to be open for scrutiny and examination before the tribunal making it inconsequential whether or not the order was one, which was totally against the assessee or partly in favour and partly against it. i am supported in the view taken by me by a decision of the supreme court in the state of tamil nadu v. jeevanlal ltd. : 1997(91)elt268(sc) , where the supreme court was dealing with an identical issue in the context of the provisions contained in the tamil nadu general sales tax act, 1959. section 34 of the said act contained provisions identical to those contained in section 22-a(3) of the state act and debarred the board of revenue from exercising its suo motu revisional powers in respect of orders that have been made the subject-matter of an appeal before the appellate tribunal or a revision before the high court. repelling the argument advanced on behalf of the state that suo motu revisional proceedings could be initiated against that part of the appellate order, which had gone in favour of the assessee, the court observed thus :'it is pertinent to note that section 34(2)(a) does not refer to any part of the order which only might be against the assessee. it refers to the order as a whole. now the order of the subordinate authority, namely, the appellate assistant commissioner can be wholly in favour of the assessee or can be wholly in favour of the revenue or can be partly in favour of the assessee and can be partly in favour of the revenue. in the first case there will be no occasion for such an order to be carried in appeal or revision either before the tribunal or before the high court by the assessee. in such a case the board of revenue will have ample jurisdiction to exercise its suo motu revisional powers in scrutinising the correctness of the concerned orders of the subordinate authorities which are passed against the revenue and the bar of section 34(2)(b) would not get attracted. but in latter two cases such order of the appellate assistant commissioner can certainly be made a subject-matter of grievance by the assessee before the appellate tribunal or even before the high court in revision. so far as second type of order is concerned, as it is wholly against the assessee, there will be no occasion for the board to exercise its suo motu revisional powers against such an order, especially when the assessee prefers to challenge it in appeal before the tribunal. but a possibility of board and tribunal being simultaneously approached by the revenue and the assessee would arise if at all the order of the appellate authority is partly in favour of and partly against the assessee. however, even in such a case the fact that such order is partly against the assessee and partly in his favour will make no difference as the order as a whole would be available for scrutiny before the tribunal or before the high court in revision. consequently the bar of jurisdiction under section 34(2)(b) would operate against the board of revenue qua such an order............... once the entire appellate order being partly in favour and partly against the assessee becomes subject to the jurisdiction of the appellate tribunal, the bar of section 34(2)(b) against the revisional powers of the board of revenue would operate in its full swing and such an order of the appellate assistant commissioner which is pending scrutiny before the appellate tribunal will go out of the ken of revisional jurisdiction conferred on the board of revenue under section 34.'5. in the circumstances, therefore, the suo motu revisional proceedings initiated by the joint commissioner in terms of the notice impugned cannot be sustained. this writ petition accordingly succeeds and is hereby allowed. the impugned notice shall stand quashed leaving the parties to bear their own costs.6. writ petition allowed.

Judgment:
ORDER

Tirath S. Thakur, J.

1. Assessment for the year 1975-76 was completed against the petitioner by the assessing authority by his order dated 4th of April, 1978. The petitioner appealed to the Deputy Commissioner and succeeded in having the matter remitted back to the assessing authority for a fresh look. A fresh order of assessment was then made on 6th of January, 1990. Aggrieved, the petitioner preferred an appeal against the said order also, which was accepted in part by the appellate authority by its order dated 20th of May, 1990. Dissatisfied the petitioner preferred a second appeal before the Karnataka Appellate Tribunal on 31st of July, 1990, which was disposed of on 8th of October, 1993. In the meantime, the Joint Commissioner of Commercial Taxes (Vigilance) summoned the records of the assessment proceedings and the appellate order on 26th of July, 1990 and decided to issue a notice to the petitioner on 8th January, 1991 calling upon the petitioner to show cause why the assessment as concluded by the assessing authority and altered in part by the appellate authority should not be set aside the same being in his opinion erroneous and prejudicial to the interest of the revenue. The petitioner is aggrieved of the said notice and has called in question the validity thereof in the present writ petition.

2. Mr. Hemraj, learned counsel appearing for the petitioner, argued that the order passed by the assessing authority had merged in the order of the appellate authority, which had in turn been assailed in appeal before the appellate Tribunal. A suo motu revision was therefore permissible only against the appellate order of the Deputy Commissioner, but keeping in view the provisions contained in section 22-A(3) of the Karnataka Sales Tax Act, the said powers could not be invoked by the Joint Commissioner since the appellate order had been made the subject-matter of an appeal before the Appellate Tribunal. Inasmuch as the notice issued by the Joint Commissioner contended the learned counsel proposes to revise an order, which has been the subject-matter of an appeal under section 22 of the Act, the same was without jurisdiction.

3. Section 22A of the Act deals with the revisional powers of the Commissioner and the Joint Commissioner. Sub-section (3) of section 22A as it stood before the amendment and on the date the impugned SMR notice was issued was as under :

'The Joint Commissioner or the Commissioner shall not exercise any power under the sub-section (1) or sub-section (2), as the case may be, if, -

(a) the time for appeal against the order has not expired;

(b) the order has been made the subject-matter of an appeal under section 20 or section 22 or of a revision in the High Court; or

(c) more than four years have expired after passing of the order sought to be revised.'

4. A plain reading of the above provision would show that the Joint Commissioner or the Commissioner is debarred from exercising the suo motu revisional powers available under section 22A, in three distinct situations covered by sub-clauses (a), (b) and (c) of sub-section (3) (supra). In so far as sub-clause (a) of section 22-A(3) is concerned, it is obvious that the same operates as a temporary bar against the exercise of revisional powers limited in point of time till the period prescribed for filing an appeal expires. The bar under sub-section (3)(a) would disappear no sooner the period of limitation is over. In so far as the bar that is created by section 22-(A)(3)(b) is concerned, the same is permanent in nature. The Joint Commissioner cannot exercise the SMR powers otherwise available to him in cases where the order sought to be revised has been made the subject-matter of an appeal before the Tribunal under section 22 or before the High Court in a revision. In the instant case, the petitioner had preferred an appeal against the appellate order on the 31st of July, 1990. On the date the Joint Commissioner issued the impugned notice, the order sought to be revised had already been made the subject-matter of an appeal under section 22 of the Act. Consequently, the bar contained in sub-section (3)(b) of section 22A was clearly attracted. It made little difference whether the suo motu revision proceedings started by the Joint Commissioner were directed only against that part of the order which had gone in favour of the petitioner and was not therefore the subject-matter of any controversy before the Tribunal. The bar contained in section 22-A(3)(b) is applicable even in cases where the order under challenge before the Tribunal is one partly in favour of the assessee and partly against it. That is because even when the appeal may have been filed only against that part of the order, which has gone against the assessee, the Tribunal can in exercise of its powers under section 22(2-A) of the Act entertain cross-objections in the manner prescribed calling in question even that part of the order, which has gone in favour of the assessee-appellant. The Tribunal thus has the authority to look into the validity of the order in its totality and grant relief to either one of the two parties before it subject of course to the procedural formalities and the safeguards being followed in the manner prescribed. That being so, the entire order passed by the appellate authority shall be deemed to be open for scrutiny and examination before the Tribunal making it inconsequential whether or not the order was one, which was totally against the assessee or partly in favour and partly against it. I am supported in the view taken by me by a decision of the Supreme Court in the State of Tamil Nadu v. Jeevanlal Ltd. : 1997(91)ELT268(SC) , where the Supreme Court was dealing with an identical issue in the context of the provisions contained in the Tamil Nadu General Sales Tax Act, 1959. Section 34 of the said Act contained provisions identical to those contained in section 22-A(3) of the State Act and debarred the Board of Revenue from exercising its suo motu revisional powers in respect of orders that have been made the subject-matter of an appeal before the Appellate Tribunal or a revision before the High Court. Repelling the argument advanced on behalf of the State that suo motu revisional proceedings could be initiated against that part of the appellate order, which had gone in favour of the assessee, the court observed thus :

'It is pertinent to note that section 34(2)(a) does not refer to any part of the order which only might be against the assessee. It refers to the order as a whole. Now the order of the subordinate authority, namely, the Appellate Assistant Commissioner can be wholly in favour of the assessee or can be wholly in favour of the Revenue or can be partly in favour of the assessee and can be partly in favour of the Revenue. In the first case there will be no occasion for such an order to be carried in appeal or revision either before the Tribunal or before the High Court by the assessee. In such a case the Board of Revenue will have ample jurisdiction to exercise its suo motu revisional powers in scrutinising the correctness of the concerned orders of the subordinate authorities which are passed against the Revenue and the bar of section 34(2)(b) would not get attracted. But in latter two cases such order of the Appellate Assistant Commissioner can certainly be made a subject-matter of grievance by the assessee before the Appellate Tribunal or even before the High Court in revision. So far as second type of order is concerned, as it is wholly against the assessee, there will be no occasion for the Board to exercise its suo motu revisional powers against such an order, especially when the assessee prefers to challenge it in appeal before the Tribunal. But a possibility of Board and Tribunal being simultaneously approached by the Revenue and the assessee would arise if at all the order of the appellate authority is partly in favour of and partly against the assessee. However, even in such a case the fact that such order is partly against the assessee and partly in his favour will make no difference as the order as a whole would be available for scrutiny before the Tribunal or before the High Court in revision. Consequently the bar of jurisdiction under section 34(2)(b) would operate against the Board of Revenue qua such an order...............

Once the entire appellate order being partly in favour and partly against the assessee becomes subject to the jurisdiction of the Appellate Tribunal, the bar of section 34(2)(b) against the revisional powers of the Board of Revenue would operate in its full swing and such an order of the Appellate Assistant Commissioner which is pending scrutiny before the Appellate Tribunal will go out of the ken of revisional jurisdiction conferred on the Board of Revenue under section 34.'

5. In the circumstances, therefore, the suo motu revisional proceedings initiated by the Joint Commissioner in terms of the notice impugned cannot be sustained. This writ petition accordingly succeeds and is hereby allowed. The impugned notice shall stand quashed leaving the parties to bear their own costs.

6. Writ petition allowed.