THADANI, C. J.-This is an application u/s. 32 (5) of the Assam Sales Tax Act of 1947 requiring the Commissioner of Taxes, Assam, to state the case for a decision of this Court in a matter arising out of an order passed by the Commissioner of Taxes, Assam, u/s 32 (4) of the Act. (2) The petitioners, registered dealers, submitted their return of sales along with their account books for the period ending 30th September 1948, to the Superintendent of Taxes, Tezpur, and claimed exemption from taxation to jute sold to certain registered dealers in Calcutta. The Superintendent of Taxes, Tezpur, rejected the claim and assessed the petitioners ' u/s. 17 (3) of the Act. Against the order ol" the Superintendent of Taxes rejecting their claim, the petitioners preferred an application u/s. 31 (1) before the Commissioner of Taxes who, while rejecting their claim, enhanced the assessment. The petitioners then made an application u/s. 32 (2) of the Act to the Commissioner requiring him to refer certain questions of law, arising out of the order passed by him, to this Court. The Commissioner of Taxes rejected the application by his order, dated -22-9-50. The petitioners have now come before us u/s. 32 (5) of the Assam Sales Tax Act, 1947. '(3) The questions sought to be referred to this Court are these: - (1) Whether, under the facts and circumstances of the case, the Commissioner was justified in enhancing the assessment in disposing of a Revision petition u/s. 31 (1) of the Assam Sales Tax Act, 1947. (2) Whether the Commissioner was justified in passing a prejudicial order by enhancing the amount of tax against which application for revision was preferred before him u/s. 31 (1) without giving any opportunity to the dealer tor being heard against the proposed enhancement as required under the proviso to subsection (1) of section 31 of the Assam Sales Tax Act, 1947. (3) Whether the consignment of jute despatched out of Assam prior to the commencement of the Assam Sales Tax Act, 1947, and sold therealter in Calcutta, is a sale within Assam u/s. 2 (12) of the Act. (4) Whether the sum of Rs.
(3) Whether the consignment of jute despatched out of Assam prior to the commencement of the Assam Sales Tax Act, 1947, and sold therealter in Calcutta, is a sale within Assam u/s. 2 (12) of the Act. (4) Whether the sum of Rs. 3,42',517-0-0 in respect of which the petitioners are assessed to sales tax on the sale of jute sold in Calcutta through the Commission Agents, is a sale witn-in the meaning of section 2 (12) of the Assam Sales Tax Act, 1947. (5) Whether the sale of goods admittedly made to the registered dealers of Assam require any further documentary evidence other thsn the account books of the dealer in support of such sales u/s. 15 (1) (b) (i) (a) and whether the taxing authorities were justified in not allowing deductions in respect of such sales out of the gross turnover, as required u/s. i5 (1) (b) (i) (a). At the hearing, the petitioners' advocate abandoned questions 3, 4 and 5 and prayed that the Commissioner be required to state the cu^e on the first two questions only. (4) The question for our consideration is - whether the Commissioner has power to enhance the assessment in the exercise of his re-visional jurisdiction under the provisions ot! S. 31 (1) of the Assam Sales Tax Act, 1947. The proviso to S. 31 (1) is in these terms: "Provided that no order prejudicial to a dealer shall be passed under this sub-section without giving him a reasonable opportunity of being heard." (5) The powers of the appellate authority under the Assam Sales Tax Act are enumerated in sub-sec. (4) of s. 30 of the Act. One of the powers under clause (a), sub-sec. (4) of s. 30 of. the Act is the power to enhance the assessment. Under S. 31 (1), the powers of the Commissioner in revision are subject to the provisions of the Assam Sales Tax Act, 1947. The expression "subject to the provisions of this Act" occurring in s. 31 (1), tend to support the view that the powers which the Commissioner can exercise in the exercise of his revisional jurisdiction include the powers of the appellate authority u/s. 30 of the Act.
The expression "subject to the provisions of this Act" occurring in s. 31 (1), tend to support the view that the powers which the Commissioner can exercise in the exercise of his revisional jurisdiction include the powers of the appellate authority u/s. 30 of the Act. The expression "subject to the provisions of this Act" expresses in a compendious manner the powers of the Commissioner in the exercise of his revisional jurisdiction, which must include the power to enhance, for, such a power is expressly given to an appellate author. This view appears to be supported by 1 language of S. 32 (2). (6) The first two questions must be read gether. If the Commissioner has power to ( harice the assessment in the exercise of his : visional jurisdiction u/s. 31 of the Act - s we hold that he has - - the power must exercised in accordance with the proviso,S. 31, for, it is common ground that an ore enhancing assessment is an order prejudiq to an assessee. It was contended by the pe tioners' advocate that no opportunity w given to the petitioners of being heard in matter of the proposed enhancement of the sessment. The record of the case, howevi does not justify the contention. The learn Commissioner in his order, dated 22-9-50, h stated: ''As regards questions 1 and 2, the case w taken up for hearing on 9-1-50 at Shillong the time of hearing, on examination of t accounts produced and a statement of sales jute, submitted by the petitioners it was foui that many items of sale of jute were lot i eluded in the gross turnover. The heari: was, therefore, adjourned and it was intimat to the representative of the petitioners that hearing would be given at Tezpur where i' firm of the petitioners was situate so that ; relevant papers and documents could be pi duced and examined in details without causi; any inconvenience to their daily business. T case was accordingly heard at Tezpur on S-50: an advocate appeared on behalf of t petitioners on that day. On 9-5-1950, the pe tioners also submitted a statement of thi sales of jute. The enhancement was made the materials furnished by the petitioners, ai it could not be said that it was done witho any basis and without giving the petitioners reasonable opportunity of being heard.
On 9-5-1950, the pe tioners also submitted a statement of thi sales of jute. The enhancement was made the materials furnished by the petitioners, ai it could not be said that it was done witho any basis and without giving the petitioners reasonable opportunity of being heard. 1 these are questions of fact, in my opinion, a: no reference is competent on these questiol (7) We think the learned Commissioner right in saying that tlie proviso to s. 31 of tj Assam Sales Tax Act, 1947. has been compli with. It was conceded by the petitioners' vocate that if the proviso to s. 31 has oe complied with by the Commissioner, his de sion to enhance the assessment rests on fac and not on any point of law. (8) The result is that the petition is dismissed with costs. The Rule is discharged. (9) DEKA, J: I agree. (10) RAM LABHAYA, J.: I agree. V.S.B. Rule discharg