Full Judgment Text
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PETITIONER:
THE STATE OF ORISSA
Vs.
RESPONDENT:
DABAKI DEVI AND OTHERS(And connected appeals)
DATE OF JUDGMENT:
24/10/1963
BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
CITATION:
1964 AIR 1413 1964 SCR (5) 253
CITATOR INFO :
R 1968 SC 843 (7)
F 1976 SC1115 (8,9,10,11)
ACT:
Sales Tax-Revision against order of assessment-Time limit-
Orissa Sales Tax Act, 1947 (Orissa 14 of 1947), ss. 12, 23.
HEADNOTE:
The respondents were assessed to sales tax under the
provisions of the Orissa Sales Tax Act, 1947, by the Sales
Tax Officer, who rejected their claim to certain deductions
from their taxable turnover, but, on appeal, the Assistant
Collector allowed the claim. The Collector of Sales Tax,
however, acting under s. 23(3) of the Act revised the orders
of the Assistant Collector by raising the taxable turnover
allowed by him to be deducted. The respondents moved the
High Court of Orissa under Art. 226 of the Constitution of
India to quash the orders of the Collector on the ground
that they were illegal under the Act as they had been made
more than thirty six months after the expiry of the quarters
in respect of which the assessments had originally been
made. The High Court took the view that the orders in
revision were really reassessments under sub-s. (7) of s. 12
of the Act of turnover which had escaped assessment or been
under assessed and as such they were barred by limitation.
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Held:(i) The view taken by the High Court that the
impugned orders were really reassessments under s. 12(7) of
the Orissa Sales Tax Act, 1947, was erroneous.
(ii) (per Das Gupta and Rajagopala Ayyangar, JJ., Sarkar,
J. dissenting). Orders of assessment made by the revising
authority must be considered to be orders passed under s. 12
as well as under s. 23 of the Act and, therefore, the period
of limitation prescribed in the second proviso to s. 12 (6)
became applicable.
Gajo Ram v. State of Bihar, (1955) 7 S.T.C. 248,
disapproved.
per Sarkar, J.-(i) The time-limit of thirty-six months pres-
cribed in s. 12(7) was only for calling for a return and not
for making the order of reassessment in respect of escaped
or under assessed turnover.
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(ii)An order made in revision under s. 23(3) was not an
order of assessment and the period of limitation in the
second proviso to s. 12(6) was not applicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 454 to 465
of 1962.
Appeals by special leave from the judgment and order dated
July 8, 1958 of the Orissa High Court in O.J.S. Nos. 289,
296 and 300 of 1956.
K.N. Rajagopal Sastri and R.N. Sachthey, for the appellant
(In all the Appeals).
Santosh Chatterjee and B. Kishore, for respondent No. 2 (In
C. A. Nos. 454 to 460 of 1962) and the Respondents (In C.A.
Nos. 461 to 465 of 1962.)
The Judgment of K.C. Das Gupta and N. Rajagopala Ayyangar
JJ., was delivered by Das Gupta J. A.K. Sarkar J. delivered
a dissenting opinion.
SARKAR J.-These appeals raise the question whether the
Orissa Sales Tax Act, 1947, sets a time limit for making an
order under s. 23(3) of the Act revising an order of
assessment. The question depends on the interpretation of
some of the provisions of the Act to which reference will be
made in due course.
The facts are these. The respondents had been assessed to
sales tax under the Act in respect of various quarters by a
Sales Tax Officer. They appealed to the Assistant Collector
of Sales Tax against the
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assessments contending that the Sales Tax Officer bad
wrongly rejected their claim to certain deductions from
their taxable turnover. The appeals were allowed.
Subsequently the Orissa High Court delivered a judgment in
another case from which it appeared that the Assistant
Collector was wrong in allowing the deductions. Thereupon
the Collector of Sales Tax acting under s. 23(3) of the Act
which provided that "the Collector may, upon application or
of his own motion, revise any order passed under this
Act...by a person appointed under s. 3 to assist him"
revised the orders of the Assistant Collector by raising the
taxable turnover allowed by him to be deducted.
The respondents moved the High Court of Orissa under Art.
226 of the Constitution to quash the orders of the Collector
in revision on the ground that they were illegal under the
Act as they had been made more than thirty-six months after
the expiry of the quarters in respect of which the
assessments bad originally been made. This contention was
accepted by the High Court. Hence these appeals.
The High Court held that the orders in revision were illegal
as they were really reassessments of turnover which had
escaped assessment or been under-assessed and under sub-sec.
(7) of s. 12 of the Act, such reassessment could not be made
in respect of any quarter after thirty-six months from its
expiry. It is not in dispute that many of the orders in
revision bad been made after the expiry of the said period
of thirtysix months. It seems to me that the High Court was
clearly in error in basing itself on sub-sec. (7) of s. 12.
The material part of the sub-section is in these terms: "If
the turnover. of a dealer for any period.has escaped
assessment or has been under-assessed,the Collector may at
any time within thirty-six months of the end of that period
call for a return........ and may proceed to assess The
time-limit of thirty-six months prescribed here is only for
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calling for a return. The sub-section prescribes no time-
limit for making the
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order of reassessment in respect of escaped or underassessed
turnover. Consequently this provision does not make the
orders with which these appeals are concerned, in any way
illegal.
We were then referred to the second proviso in sub-sec. (6)
of s. 12 of the Act as specifying a time limit of thirty-six
months for these orders. The sub-section is in these terms:
"Any assessment made under this section shall be without
prejudice to any prosecution instituted for an offence under
this Act:
Provided that when the Collector has imposed a penalty in
addition to the amount assessed under this section, no
further proceedings either revenue or criminal shall be
taken against the dealer.
Provided further that no order assessing the amount of tax
due from a dealer in respect of any period shall be passed
later than thirty-six months from the expiry of such
period."
The sub-section would no doubt apply if the orders made in
this case were orders "assessing the amount of tax due"
contemplated by it. The question therefore is what do the
words "order assessing the amount of the tax due" in the
proviso mean. Of course, the whole of s. 12 has to be
considered for deciding the meaning of these words and I
will presently do so. In the meantime however I may observe
that though s. 12 talks of assessment by a Collector it
includes assessment by other officers appointed under the
Act to assist the Collector for under s. 17 the Collector
can delegate his powers to such officers, who are
subordinate to him.
I now turn to s. 12. It has seven sub-sections each of
which except sub-sec. (6) deals with assessment in a
specified case. Each of’ them expressly provides for an
order of assessment being made. The first sub-section deals
with a case where the assessing officer is satisfied without
hearing the dealer or taking evidence that the return is
correct. The
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second sub-section covers a case where he is not so
satisfied and provides for the assessment being made after
hearing evidence. The third sub-section concerns a case
where the dealer fails to attend or produce evidence when
called upon to do so under the preceding sub-section. Sub-
section (4) provides for a case when a dealer does not
furnish returns which he is required by the Act to do. The
fifth sub-section relates to a case where a dealer
wrongfully fails to apply for registration. The sixth sub-
section has earlier been set out. The last and seventh sub-
section as already seen, deals with assessment of turnover
which had escaped assessment or was under-assessed.
Now it does not seem to me that an order made under s. 23(3)
can properly be called an order "assessing the amount of tax
due" as contemplated by the Act at all first observe that
the only section which expressly provides for assessment of
tax is s. 12. No other section refers to an order of
assessment. It would follow that an order is not an order
of assessment of tax due unless it is made under this
section. Then I find that an order made under s. 23(3) is
not described as an order of assessment. Indeed that
subsection deals with an order revising an order passed
under the Act and, therefore, revising an order of
assessment made under s. 12. This also supports the view
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that the Act does not consider such an order as an order of
assessment. Again the same conclusion is also suggested by
sub-sec. (2) of s. 23 which says that, "The appellate
authority in disposing of any appeal.................. may-
(a) confirm reduce, enhance or annual the assessment."
Obviously it is not considered that an appellate authority
makes an assessment when it confirms, enhances or reduces an
assessment. If an appellate order enhancing the assessment
is not considered as an assessment order, neither can a
similar order passed in revision be so considered. In my
view. the Act does not contemplate an order which is not
made under s. 12 as an order assessing the amount of tax
due.
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Then again I think it is clear from what I have set out
above that sub-secs.(1) to (5) and (7) of s. 12 deal with
original orders of assessment as distinguished from orders
made in appeals from or by way of revision of such original
orders or by way of review of them. Now the first part of
sub-sec. (6) and the first proviso to it deal expressly with
orders made under the section. Therefore they do not apply
to appellate or revisional orders. The second proviso with
which this case is concerned no doubt contains no express
reference to assessment under the section but it would be
strange if that proviso was intended to apply to orders of
assessment made in appeals or by way of revision, assuming
that such orders could properly be called orders of assess-
ment. If it was intended to provide a period of limitation
for an order in appeal or by way of revision then the
provision containing it would not have been put in s. 12 nor
would the order have been described as an "order assessing
the amount of tax due." It may be that the time limit
specified in the second proviso does not apply to an order
of assessment under sub-sec. (7). That would not however
affect the question. A recent amendment to s. 12 has
expressly provided that the time limit in the second proviso
does not apply to an order under sub-sec. (7).
Lastly, it seems to me that if the second proviso in s.
12(6) fixes a period of thirty-six months from the end of a
period within which an order can be made under s. 23(3)
revising an order of assessment in respect of that period,
the consequence would be so disastrous for the tax-payer
that it could not have been intended. It would then be open
to the Collector to make the application for revision
preferred by a dealer against an assessment order made on
him or against an appellate order, infructuous by the simple
expedient of allowing the thirty-six months’ time to pass.
It is important to observe that there is no provision
anywhere in the Act requiring the revising authority to
dispose of an application in
259
revision filed before him within any particular period of
time and the original order of assessment can be made at any
time within the period of thirty-six months. Further a
dealer has no remedy against any delay in making an
assessment so long as it is made within the period of
thirty-six months. Therefore it is not unlikely that in
many cases there may not be much time left between the
filing of an application in revision by a dealer and the
expiry of the period of thirty-six months. If the time
limit specified in. the second proviso applied to an order
under s. 23(3), it would be open to the authorities to
deprive a taxpayer of his right to apply under s. 23(3). An
interpretation leading to such a result cannot be accepted.
This aspect of the matter is made clearer by s. 23(1) which
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gives a dealer the right to file an appeal within thirty
days of the receipt of the order of assessment. Obviously,
if an order in revision can be an assessment order, so can
an appellate order be. The appellate order would then have
to be made within the period of thirty six months. Now
suppose the period of thirty-six months expires within the
thirty days mentioned in s. 23(1), as it well may since the
order of assessment can be made at any time within the
thirty-six months. In such a case on the interpretation for
which the respondent dealers contend, the right to file the
appeal within the thirty days mentioned in s. 23(1) would
vanish; there would be a conflict between s. 23(1) and the
second proviso to s. 12(6). An interpretation leading to
such a result cannot be correct. The position would be the
same in the case of an application for revision for the Act
provides no time-,limit for making such an application and
therefore contemplates the making of it at any time. An
interpretation of a provision in the Act which imposes, not
expressly but practically, a time limit on the right to
apply ID revision given by another provision must be of
doubtful validity. I am not prepared to accept that
interpretation as it is neither the only interpretation nor
an interpretation which is clearly supported by the language
used.
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It is true that if an order in appeal or revision can be
made at any time, the case may be kept hanging over the head
of the dealer for a very long time at the option of the
authority concerned. This consideration however does not
lead me to accept the view advanced by the respondents. The
calamity and the anomaly resulting from it to which I have
earlier referred, seems to me to be much more serious than
the inconvenience that it avoids. Further the inconvenience
imagined seems to me to be more fanciful than real. It is
not likely that the authorities would deliberately keep an
appeal or a revision application pending for no reason at
all as that would not give them any advantage whatever.
I would for these reasons allow the appeals.
DAS GUPTA J.-These twelve appeals by the State of Orissa are
in respect of twelve separate orders of assessment of sales
tax that were made by the Collector of Sales Tax, Orissa, in
exercise of his powers of revision under s. 23 of the Orissa
Sales Tax Act. The several dealers who are the respondents
in the appeals moved the Orissa High Court under Art. 226 of
the Constitution for the issue of appropriate writes direct-
ing the State of Orissa not to collect the amounts which
were said to have been illegally assessed. These several
petitions have been allowed by the High Court and the orders
of assessment made by the Collector have been quashed. The
State of Orissa has filed the present appeals ’against the
High Court’s orders on special leave granted by this Court.
All the orders made by the Collector were passed later than
36 months from the expiry of the period in respect of which
the assessment was made. The common question of law which
arises in these appeals is whether the High Court was right
in holding that these orders are bad in law on the ground
that they contravene the provisions of the second proviso to
sub-s. 6 of s. 12 of the Orissa Sales Tax Act.
Section 4 of the Act is the charging section and. declares
the incidence of taxation on sales. Section 5 deals with
the rate of tax. It is unnecessary for
261
our present purpose to examine the provisions of ss. 6 to 10
which deal with the power of State Government to declare
certain goods as tax free goods, to exempt certain dealers
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from tax, the power of the State Government to prescribe
points at which the goods may be taxed, the registration of
dealers, the publication of the list of registered dealers
and the matters of collection of tax by dealers. Section 11
lays down that such dealer as may be required to do so by
the Collector by notice served in the prescribed manner and
every registered dealer shall furnish such returns by such
dates and to such authority as may be prescribed. Section
12 of the Act, with which we are primarily concerned. deals
with the question of assessment of tax. In the first five
subsections of this section the legislature has laid down
the different modes in which assessment of tax may be made.
Under the first sub-section the Collector shall assess the
amount on the basis of the return furnished if he is
satisfied. without requiring the presence of a registered
dealer or the production by him of any evidence that they
are correct and complete. The second and third sub-sections
deal with the case where he is not so satisfied. In such-
cases the Collector shall assess the amount after hearing
such evidence as the dealer may produce in support of the
returns after the issue of a notice and such other evidence
as the Collector may require on specified points (sub-s. 2);
if the registered dealer fails to comply with the terms of
the notice issued the Collector shall assess the amount of
tax to the best of his judgment (sub-s.3). Sub-section 4
deals with the case where the registered dealer does not
furnish returns by the prescribed date. In such a case also
the Collector shall also assess the tax to the best of his
judgment after giving the registered dealer a reasonable
opportunity of being heard. Sub-section 5 provides for
assessment by the Collector of taxes due from a dealer about
whom he is satisfied that he has been liable to pay tax
under the Act in respect of any period and has nevertheless
failed to apply for registration Then comes sub-section 6
which runs thus
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"(6) Any assessment made under this section shall be without
prejudice to any prosecution instituted for an offence under
this Act:
Provided that when the Collector has imposed a penalty in
addition to the amount assessed under this section, no
further proceedings either revenue or criminal shall be
taken against the order:
Provided further that no order assessing the amount of tax
due from a dealer in respect of any period shall be passed
later than thirtysix months from the expiry of such period".
Sub-section 7 provides that if for any reason the turnover
of a dealer has escaped assessment or has been under-
assessed the Collector may call for a return within 36
months of the end of the period in question and may proceed
to assess the amount of tax in the manner laid down in sub-
s. 5.
After the assessment order has been made under s. 12 a
dealer may appeal to the prescribed authority against such
order. This is provided by s. 23, sub-s. (1). Then follows
provisions dealing with the orders which an appellate
authority might pass and with revisions which we shall set
out:
"Subject to such rules or procedure as may be prescribed,
the appellate authority, in disposing of any appeal under
sub-section (1),
may-
(a)..confirm, reduce, enhance or annul the assessment or
penalty, if any, or both or
(b)..set aside the assessment or penalty, if any or both and
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direct the assessing authority to pass a fresh order after
such further inquiry as may be directed.
(3)Subject to such rules as may be prescribed and for
reasons to be recorded in writing, the Collector may upon
application, or of his own
263
motion, revise any order passed under this Act or the rules
thereunder by a person appointed under s. 3 to assist him,
and, subject as aforesaid, the Revenue Commissioner may, in
like manner, revise any order passed by the Collector."
While nothing as regards the period within which such
revisional powers may be exercised is stated in. the Act
itself, the power is in terms made subject "to such rules as
may be prescribed". Rule 54 of the Rules made by the State
Government under s. 29 of the Act lays down that the
Collector may of his own motion exercise such powers of
revision within one year from the date of the passing of the
order made while the Revenue Commissioner may exercise his
powers of revision within one year from the date of the
passing of any order by the Collector.
Though in all these cases the impugned orders were made by
the Collector of Sales Tax in purported exercise of powers
of revision under s. 23(3), the petitioners in the several
petitions claim that the orders were in substance made under
s. 12(7) of the Act. The High Court was of opinion that s.
12(7) includes also the order of assessment made by the
revising authority under s. 23(3) and in that view held that
the orders of assessment passed beyond thirty-six months
from the end of the period in question were barred by
limitation.
The first contention urged on behalf of the State of Orissa
is that the High Court is wrong in holding that an order of
assessment of revising authority is necessarily one made
under s. 12(7). The power of revision granted by s. 23(3)
is clearly a distinct and separate power from the power to
assess after calling for a return in case of under-
assessment or escaped assessment. The mere fact that in a
particular case the revising authority has by a fresh order
of assessment made the dealer liable for tax in respect of
which he can be said to have been under-assessed or to have
escaped assessment does not make the two powers one and the
same. We therefore find it
264
difficult to agree with the High Court that s. 12(7)
includes also the re-assessment made by the revising
authority under s. 23(3).
The question however still remains whether accepting the
position that the orders made by the Collector in the
present case were not orders under s. 12(7) they were still
orders of assessment to which limitation prescribed by the
second proviso to s. 12 (6) applied. On behalf of the
appellant it is urged that the limitation prescribed in this
proviso applies only to orders of assessment made under s.
12 and that the impugned orders were made not under s. 12
but under s. 23 and so the limitation prescribed in this
proviso does not apply to the impugned orders. It is worth
noticing first of all that what appears as the second
’proviso’ in s. 12 (6) has no connection with the
legislative provision in the first part of the sub-section.
That provision which has already beer set out is that
assessment made under s. 12 shall be without prejudice to
any prosecution instituted for an offence under the Act.
The first proviso is undoubtedly connected with the main
provision. The second proviso however contains nothing by
way of saving or exception to that main provision. It has
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nothing to do with the question of any prosecution. If we
look at the substance of the matter, as we must, it appears
clear that the provision of a period of limitation of 36
months for the passing of an order of assessment of tax is
really an independent legislative provision of the Act and
though it has been inserted by the draftsmen in the form of
’a proviso’ in s. 12(6), it is in substance not a real
’proviso’ to the main provision. That independent
legislative provision lays down that no order "assessing the
amount of tax shall be passed after the lapse of 36 months
from the expiry of the period" for which the assessment is
made. The provision is not in terms limited only to orders
of assessment made under s. 12 but on its language applies
to and governs any order assessing the amount of tax which
would manifestly include an assessment under any provision
of the
265
Act besides s. 12. The consequence is that even if an order
of assessment made in exercise of powers of revision under
section 23 be held to be not an order Made under s. 12 this
limitation of 36 months from the expiry of the period for
which the assessment is made will still be applicable.
Mr. Sastri however submitted that as the provision under
consideration actually appears as a ’proviso’ in s. 12(6)
the intention of the legislature was to make it applicable
to only those orders of assessment to which the main
provision which uses the words "Any assessment made under
this section" related. As the main provision expressly
relates only to orders of assessment under s. 12 it was
argued that the period of limitation in the second proviso
was intended to govern only orders of assessment made under
s. 12.
We have already set out the reasons for which we think that
this provision of limitation though it appears as a proviso
in s. 12(6) is in reality an independent legislative
provision, as its subject-matter has nothing whatever to do
with the main provision in s. 12(6), or the proviso to sub-
s. 6 which precedes it. If therefore it is in truth an
independent provision, unrelated to s. 12(6) we do not see
any logic or reason for importing into it the construction
that its operation must be confined to an assessment under
s. 12, for read by itself on any, reasonable construction it
would appear to be a limitation imposed on any order of
assessment made under the Act. i.e., under any provision of
the Act. Assuming, however, for argument’s sake that it
applies only to orders of assessment under s. 12, that
construction is of no help to the appellant unless it can be
said that the impugned orders of assessment were not made
under s. 12. We find it difficult to see how that can be
said. It is true, no doubt, that the orders were made by
virtue of powers conferred by s. 23. But s. 23 itself does
not clothe the appellate or revising authority with any
independent powers of assessing the tax due under the Act,
independent of the powers under s. 12.
266
A close examination of the terms of s. 23 would make this
position clear. Let us first take the case of the powers of
the appellate authority under s. 23(2). Among the orders he
might pass in disposing of an appeal are "(b) set aside the
assessment............... and direct the assessing authority
to pass a fresh order after such further enquiry as may be
directed." Mr. Sastri did not dispute the position that if
the appellate authority exercised the power underlined the
"assessing authority" can proceed to carry out the fresh
assessment only under s. 12 and that in that event, his
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right to proceed further in the way of assessment would be
subject to the limitation of 3 years prescribed by the
second proviso to s. 12(6). The result would thus be that
the appellate authority could pass an order setting aside
the assessment at any time but the assessing authority
cannot give effect to the order to make a fresh assessment
if by that date three year period is past. This would
virtually mean that if on the date the appeal was disposed
of the 3 year period was over or nearly over, the powers
which the appellate authority could exercise would be
restricted to those set out in cl. (a) of s. 23(2), a result
which would never have been contemplated. in other words, if
the construction suggested by the appellant were accepted,
we would have the anomalous situation that if the appellate
authority set aside the assessment and remanded it for fresh
orders, no fresh assessment can be done, but that if’
instead of so doing, he himself effected the same reassess-
ment, there would be no bar of limitation. On such a
construction therefore it would be at the option of the
appellate authority, depending on the precise order he
passed to decide, whether the period of limitation which the
statute had prescribed should be attracted to an assessment
or not. That should be sufficient to reject the
appellant’s argument that s. 23(2) was itself the source of
power to effect an assessment. We need hardly add that what
applies to an appeal under s. 23(2) applies to a revision
under s. 23(3), as the powers of the revising authority and
the orders it might pass are not conceived of as differ-
267
ing in any manner from those of the appellate authority.
We have, therefore, no hesitation in holding that even when
an appellate or revisional authority is effecting a fresh
assessment by enhancing it is exercising the power which is
conferred by s. 12, and so to speak, doing the duty which.
an assessing authority would or ought to have performed.
Any order of assessment made by the appellate authority or
as in the present appeals by the revising authority must
therefore be held to be orders passed under s. 12 as well as
under s. 23. Consequently, the period of limitation
prescribed in the second Proviso in
S. 12(6) will in terms become applicable.
But, says Mr. Sastri, look at the anomalous position that
will arise if this period of limitation of 36 months be held
to apply to appellate or revisional orders of assessment.
In many cases, he rightly points out, it may happen that the
original order of assessment will be made either on the last
date of the 36 months’ period or only shortly before that.
In all such cases no appellate order or revisional order of
assessment can possibly be made within this period of 36
months . Mr. Sastri has tried to persuade us that such a
result could not have been intended by the legislature. So,
he says, the legislature should be held to have intended
that this period of limitation applies only to the original
orders of assessment. The obvious answer to this argument
is that if that was the intention of the legislature nothing
could have been easier than to say so. It is pertinent also
to point out in this connection that except for this
provision in the second proviso to s. 12(6) the Act itself
contains no provision as regards limitation for orders of
assessment. If Mr. Sastri is right, the position in law
would be that once an original order of assessment has been
made within this period of 36 months the appellate authority
or the revising authority may make his order of assessment
after any amount of delay. We find it difficult to believe
that the legislature while prescribing a period of
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limitation about original orders of assess-
268
ment would refrain from prescribing any such period of
limitation in respect of appellate or revisional orders of
assessment. It is true that the rule-making authority has
itself prescribed in Rule 54 the period of one year from the
date of the passing of the order as the time within which
the Collector or the Revenue Commissioner may of his own
motion revise the order. But this prescription of a period
within which the power may be exercised might not have been
made at all or may at any time be deleted. Even the rule-
making authority has not prescribed any period of limitation
within which an appellate order of assessment can be made or
the time within which the Collector or the revising
authority when exercising revisional jurisdiction on an
application by the dealer must pass the order. The
important point is that so far as the legislature is
concerned no special rule for limitation as regards any
revisional order or appellate order had been made. The fact
that no period of limitation has been prescribed by the
legislature itself for the passing of any order of assess-
ment by the appellate authority or the revising authority is
a further reason for thinking that the legislature intended
that the period of limitation prescribed in s. 12(6) should
apply to all orders of assessment irrespective of whether
they were original orders, or appellate orders or revisional
orders.
The difficulty pointed out by Mr. Sastri may really arise in
certain cases. It is reasonable to expect that in the large
majority of cases such a difficulty will not arise if the
original order of assessment is made expeditiously so that
it will be possible for the appellate authority or the
revising authority to act within this period of 36 months.
If in certain cases the difficulty does arise that is not,
in our opinion, a sufficient reason, in view of the several
considerations mentioned above, to think that the
legislature intended, without saying so, that the period of
limitation prescribed applied only to original orders of
assessment.
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Mr. Sastri drew our attention to a decision of the Patna
High Court in Gajo Ram v. State of Bihar’ " where construing
a some what similar ’proviso in s. 10(6) of the Bihar Sales
Tax Act, 1944 that Court held that the 24 months’ period of
limitation prescribed there applied only to original orders
of assessment. The learned Judges appear to have been im-
pressed by the argument that absurdity will result if the
period of limitation for the- original orders of assessment
and orders of assessment made by the appellate or revisional
authority be the same. For the reasons we have already
mentioned, that argument does not appear to us to be
convincing.
We have therefore reached the conclusion that the impugned
orders of assessment were barred by limitation, having been
made more than 36 months after the expiry of the period for
which the tax was assessed. We-hold therefore that the High
Court was right in quashing the several orders of assess-
ment.
The appeals are dismissed with costs. There will be one set
of hearing fee for all the appeals.
ORDER
In accordance with the opinion of the majority, the appeals
are dismissed with costs. One set of hearing fee for all
the appeals.
(1) 7 Sales Tax Cases 248,
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