Commercial Taxes Officer, Alwar v. Durgadas Kamra — 1974 DIGILAW 171 (RAJ)

C.S. Gupta, Member—In the 5—revisions numbers 90, 92, 94, 96 and 152 of 1973 under the Rajasthan Sales Tax Act, the learned Member of the Board (Shri P.D. Kudal) has constituted on 4-1-1974 the following question of law for determination by a Larger Bench of the Board of Revenue:— "Whether the assessing authority is competent to file a revision petition before the Board of Revenue, under Section 14 (1) of the Rajasthan Sales Tax Act against its own orders and whether the assessing authority can be a party aggrieved against its own orders " 2. Briefly, the facts are that the 5—pending revisions under Section 14 (1) of the Rajasthan Sales Tax Act, 1954 are against orders dated 28-1-1971 and 18-3-72 of the Assistant Commercial Taxes Officer, Ward —A, Alwar who was the assessing authority. The non-applicant - assessee was assessed to sales tax for the various years from 1960 61 to 1962-63 by the assessing authority. The assessee filed appeals before the Deputy Commissioner, (Appeals), Jaipur which were allowed and a substantial refund of tax was permitted. The Assistant Commercial Taxes Officer, finally ordered on 18-3-1971 for refund of tax to the assessee of the amount permitted by the appellate authority. The assessing authority has filed revisions against this order before the Board of Revenue. 3. The important point-of-law referred to us for consideration in the present reference is whether an assessing authority can file a revision petition under Section 14 (1) of the Rajasthan Sales Tax Act, 1954 against his own orders and whether he can be deemed to be an aggrieved party in respect of his own orders. 4. We have heard learned counsels present and carefully perused the record. 5. The learned counsel for the applicant C.T.O. has claimed that the assessing authority can move the Board under Section 14(1) of the Rajasthan Sales Tax Act, if he considers that any order is illegal or improper or erroneous and it is then for the Board to take appropriate action or reject such a move He has placed reliance on "State vs. M/s Munnalal Raghunath Pd." (1968 RRD 422) which is a Single Bench case and on another case "State of Rajasthan vs. M/s Mishrilal Gordhanlal of Beawar" (unreported revisions Nos. 190 to 193 of 1968 decided on 10 9-1968 by a Division Bench of the Board of Revenue consisting of Sarvashri Goverdhan Singh Choudhry and G.L. Mehta). We do not find that the matter raised before us was decided at all in 1968 RRD 422 but in the unreported judgment of the Board dated 10-9-1968 in the case of "State of Rajasthan vs. Mishrilal Goverdhanlal of Beawar" there is a clear finding that an assessing authority can move the Board in revision against his earlier order on the ground that it is erroneous 6. The learned counsel for the opposite party and those who have appeared as amicus curiae have, however, argued that the assessing authority who passed the original order could not get it revised on the ground that he was an aggrieved party. The Assistant Commercial Taxes Officer, Ward A Alwar is the assessing authority but the revisions have been filed by the Commercial Taxes Officer, Alwar. The Commercial Taxes Officer, Alwar could not file any revisions under Section 14(1) of the Rajasthan Sales Tax Act, 1954 in the present cases. 7. It has been strongly urged before us that looking to the scheme of the Rajasthan Sales Tax Act, an assessing authority could not file revisions against his own order under section 14(1) of the R.S.T. Act. The assessing authority acts as a Judge while making assessments under sections 7A, 7B, 10 and 12 of the Rajasthan Sales Tax Act. Section 3 of the same Act provides a dealer to pay tax on his taxable turnover and section 6 makes it compulsory for every dealer to be registered. Section 7A comes into play when a dealer fails to furnish his returns and the assessing authority makes best judgement assessment of tax to be recovered, If a dealer evades or avoids tax, the assessing authority determines the tax according to his best judgment under section 7B. Normally, assessment is made by the assessing authority on the basis of returns under section 10. Incorrect assessments by the assessing authority can be subjected to reassessment under section 12 and the Deputy Commissioner, (Administration) has also been given powers to check the action taken by the assessing authority in this Section. Thus, at the stage of assessment, the assessing authority is a Judge while a dealer liable to pay tax under the RS.T. Act is a party before him. Thus, at the stage of assessment, the assessing authority is a Judge while a dealer liable to pay tax under the RS.T. Act is a party before him. The assessing authority could not, be treated to be an aggrieved party against his own decision given under Section 7A, 7B, 10 or 12. The party aggrieved is only the dealer and this is the reason that there is a provision for filing appeals against the orders of the assessing authority under section 13 of the Rajasthan Sales Tax Act. 8. Section 13(2) of the R.S.T. Act makes it clear who are parties to an appeal and who have the right to be heard before decision of the appeal. There is the appellant-dealer and opposite him there is the authority against whose order the appeal has been preferred. The order in appeal passed under section 13 of the R.S.T. Act is final subject to the decision given in revision under section 14 and of any reference made to the High Court under section 15 of the R.S.T. Act as is abundantly clear by sub-section(4) of sec. 13 of the R.ST. Act. If the decision of the assessing authority is affirmed in appeal he could not be deemed to be "aggrieved" by his own order but if his order is set aside or modified by the appellate authority then the assessing authority could be deemed to be an aggrieved party against the decision of the appellate authority and in that position, he could move the Board of Revenue for revision under section 14(1) of the R.S.T Act, 1954. 9. If an order of the assessing authority is appealable under section 13 of the R.S.T. Act and appeal has been preferred no revision would be heard and decided under section 14 of the R.S.T. Act but if no appeal has been preferred then a revision could be filed under this section. Under section 14(1) the assessing authority could move the Board for revising the order which is illegal, improper or erroneous but under section 14(2), the dealer could move the Board to revise the order by which he is aggrieved but the Board of Revenue could not pass any orders prejudicial to the assessee in a revision instituted under section 14(2) of the R.S.T. Act, 1954. 10. 10. It has been strongly contended that the assessing authority is not a party at the stage of initial assessment of tax. He only becomes a party at the stage of appeal under section 13 of the R.S.T Act and if he is aggrieved by any appellate order then only he can move the Board in Revision under section 14(1) of the R.S.T. Act. The learned counsels have placed reliance on the case of "State of Rajasthan vs. Nathilal & sons" (1972 RRD 238), State of M.P. (now Maharashtra) vs. Haji Hasan ada" (1966 (XVII) STC 343); 1970 (76) I.T.R. 582; 1972 T.R. 301 and 1962 (1) SCR 239 . 11. In the case of "State of Rajasthan vs. M/s Nathilal & sons" (1972 RRD 238), the learned single Member of the Board has held that assessing authority could move the Board in revision only when he is a party aggrieved against order under revision relying on 1970 (Vol. 76) I.T.R. 582. The unreported case of "State of Rajasthan vs. M/s Mishrilal Goverdhanlal of Beawar" decided earlier by learned Devision Bench of the Board on 10 9-1968 (case Nos. 190 to 193 of 1968 under the R.S.T. Act) was probably not brought to his notice and the same has not been discussed in 1972 RRD 238. He has now disagreed with the Division Bench ruling dated 10-9-1968 while making the present reference to the Larger Bench. 12 In 1972 (Vol. VI) T.R. 301 (Mos E.R.Joseph & Co. (p) Ltd. vs. The Central Board of Revenue, New Delhi), the Honble Supreme Court of India has accepted the following observations of Lord Denning :— "The rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in casua sua: and Audi alteram partem They have recently been put in the two words, Impartiality and Fairness. The right to be heard is another. These two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in casua sua: and Audi alteram partem They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations." They expressed the view that if it had been proved that the Deputy Collector of Customs who made the search and, thereafter, after hearing the case, based his conclusion on one of the documents discovered during the search, they would have no hesitation to set aside his order on the simple ground that he was both the Prosecutor and the Judge in the same cause. This was not established and so the Honble Supreme Court refused to interfere. They have, however indicated the principle of natural justice that a man could not be both the Prosecutor as well as the Judge in the same cause. On this analogy it has been argued that the assessing authority who acts as a Judge while making initial assessment order could not act as a prosecutor while moving the Board of Revenue against an assessee in revision under section 14(1) of the R.S.T. Act unless his order has been interfered with by the appellate authority under section 13 and he has become an aggrieved party against such an order to any extent and in the latter contingency alone he could move the Board in revision under section 14 (1) and not otherwise. The Honble Supreme Court in another case "State of M.P. (Now Maharashtra) vs. Haji Hasan Dada" (1966 (Vol. 17) S.T.C. 343) observed that "under section 13 of the G.P. and Berar Sales Tax Act, 1947 refund could be granted only of the amount which is not lawfully due; and whether a certain amount is lawfully due or not must be determined by the officer in making the order of assessment or reassessment. Until the order of assessment is set aside by appropriate proceedings under the Act full effect must be given to the order found that the order was erroneous in law. Until the order of assessment is set aside by appropriate proceedings under the Act full effect must be given to the order found that the order was erroneous in law. Therefore, an application for refund of sales tax paid under an order of assessment made by the Assistant Commissioner of Sales Tax could not be entertained by that officer on the plea that the order was made on an erroneous view of the law unless the order was set aside in appropriate proceedings by way of appeal or revision. Under this Act, the Assistant Commissioner who exercised the powers of the Commissioner has no power to review his decision nor is he authorised to ignore his previous order and to pass an order for refund inconsistent with his previous order which has not been set aside by appropriate proceedings". It is pointed out that in the present matter the order of A.C.T.O. Ward A Alwar was modified by the Deputy Commissioner in appeal and the A.C.T.O Alwar has merely taken action to give effect to the order of the Deputy Commissioner in appeal for according to the doctrine of merger, the order of assessing authority merged in the appellate order after decision of appeal. 13. In another case "Md. Sharfuddin vs. R. P. Singh and others (1962 I-SC 238), the Honble Supreme Court held that in this case the Assistant Custodian, Giridih, passed an order holding that the properties of the appellant were not evacuee properties under the Administration of Evacuee Property Act, 1950. The Custodian called for the record of the case and after hearing the appellant dropped the proceedings. Subsequently, the Assistant Custodian, Headquarters, Patna filed an appeal before the Custodian, against the order of the Assistant Custodian, Giridih. It was held that an appeal filed by the Assistant Custodian Headquarters, Patna was incompetent as he was not a person aggrieved under the said Act by the order of the Assistant Custodian Giridih and so he could not prefer an appeal. 14. In 1970 (Vol. 76) I.T.R. 582, their Lordships of Mysore High Court have observed as under : "The Income tax Officer determined the tax payable by the assessee. After adjusting the advance tax paid and the tax paid under sec. 104A, a notice of demand was issued to the assessee for the balance amount. 14. In 1970 (Vol. 76) I.T.R. 582, their Lordships of Mysore High Court have observed as under : "The Income tax Officer determined the tax payable by the assessee. After adjusting the advance tax paid and the tax paid under sec. 104A, a notice of demand was issued to the assessee for the balance amount. For not having filed the return in time, the Income-tax Officer levied penalty on the assessee at 2 per cent for the default period on the whole of the tax amount. On appeal to the Appellate Assistant Commissioner, the Income-tax Officer conceded that, on the basis of executive instructions, the word "the tax" should mean the tax as demanded on the income assessed less the tax deducted at source and/or the tax paid in advance, and the Appellate Assistant Commissioner held that the penalty ought to have been calculated with reference to the tax payable On appeal by the Income-tax Officer to the Appellate Tribunal, the Tribunal restored the order of the Income-tax Officer." The Mysore High Court held that "the Income Tax Officer was bound by the circular and, further, as he had conceded that the penalty had to be computed on the basis of net tax only, when the Appellate Assistant Commissioner acted on the said concession, it could be said that the Income-tax Officer was aggrieved of the order of the Appellate Assistant Commissioner and his appeal so far as it related to the deduction of the advance tax paid by the assessee was unsustainable." 15. It is elementary that primary duty of a court is to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration cab be called in aid to find that intention as held in AIR (Vol. 37) 1950 S.C. 165. We have, therefore, to glean the intention of the Legislature from the provisions of R.S.T. Act, 1954 as it stands. 16. We have discussed the scheme of R.S.T. Act, 1954 above from which it is absolutely clear that at the stage of assessment under sections 7A, 7B, 10 and 12 of the R.S.T. Act, the assessing authority acts as a Judge and the dealer is before him to be assessed to tax like a person accused before a court of law. We have discussed the scheme of R.S.T. Act, 1954 above from which it is absolutely clear that at the stage of assessment under sections 7A, 7B, 10 and 12 of the R.S.T. Act, the assessing authority acts as a Judge and the dealer is before him to be assessed to tax like a person accused before a court of law. If there is any mis-take in the assessment order, the assessing authority has the remedy under sections 12 and 17 of the R.S.T. Act either on his own motion or on representation made by the dealer. He has no other remedy. The dealer can go in appeal against the assessment order under section 13 of the R. S. T. Act and if the assessment order is modified by the appellate authority, the assessing authority becomes an aggrieved party against the appellate order and then alone he can move the Board of Revenue under section 14(1) of the R.S.T. Act to revise the said order. If, however, the assessment order made by the assessing authority is confirmed in appeal by the appellate authority, the assessing authority cannot be deemed to be an aggrieved party at all and in that state of things, he cannot move the Board of Revenue for revising his own order which has been sustained in appeal, under section 14(1) of the RST. Act on the basis of natural justice that a man cannot be permitted to be both a Judge as well as a Prosecutor in the same cause as opined by the Honble Supreme Court in 1972 (6) T.R. 301. We also respectfully follow the observations made by the Honble Supreme Court in 1966 (Vol. XVII) S.T.C. 342 and by the Honble Mysore High Court in 1970 (76) I.T.R. 582 as well as 1963 (1) S.C.R. 239. 17. We have also looked into the definition of the term aggrieved given at page 41 of the Websters Third New International Dictionary-volum I-1967, A person aggrieved is one who is troubled or distressed in spirit or who suffers from an infringement or denial of legal rights and has a grievance. The assessing authority who has passed a particular order under sections 7A, 7B, 10 and 12 of the R.S.T. Act should be normally satisfied with his own order passed against a dealer. The assessing authority who has passed a particular order under sections 7A, 7B, 10 and 12 of the R.S.T. Act should be normally satisfied with his own order passed against a dealer. If any mistake is found in his order he can set it right under sections 12 or 17 of the R.S.T. Act on his own motion or at the instance of the dealer. In the instant case, the assessing authority has not deemed to take re-course to the provisions of Sections 12 or 17 of the R.S.T. Act hence it must be presumed that he was fully satisfied with his initial assessment orders. Appeals were preferred against his assessment orders before the appellate authority and the learned Deputy Commissioner, (Appeals) modified his orders to some extent. The assessing authority consequently, became an aggrieved party as his decisions had been affected by the judgment of the appellate authority and in that position he could make a move under section 14(1) of the RST. Act before the Board of Revenue to revise the appellate order for his own order had merged in the appellate order. This is the position in the present case. Thus the assessing authority was competent to make a reference to the Board under section 14(1) of the R.S.T. Act against orders of the Deputy Commissioner, passed in appeal by which his original assessment orders were modified. 18. We therefore, answer the reference made to us that an assessing authority will be competent to file a revision under section 14(1) of the R.S.T. Act, 1954 against his own orders which have merged in the appellate order and, consequently, he feels aggrieved by it. If, however, the order of the assessing authority has been confirmed in appeal he could not file a revision against his order before the Board under section 14(1) of the R.S.T. Act for he could not have any grievance against his own order. Whether, the assessing authority is an aggrieved party in a particular case and hence entitled to file revision be/ore the Board under section 14 (1) of the R.ST, Act will depend on circumstances of each case. 19. Whether, the assessing authority is an aggrieved party in a particular case and hence entitled to file revision be/ore the Board under section 14 (1) of the R.ST, Act will depend on circumstances of each case. 19. Lastly, we notice that although the assessing authority in the 5-revisions under consideration was admittedly the Assistant Commkercial Taxes Officer, Ward A Alwar, these revisions have been filed by the Commercial Taxes Officer, Alwar who is neither the assessing authority nor appellate authority and hence he had no locus standi to move the Board under s. 14(1) of the Rajasthan Sales Tax Act in the present matter. The Asst. Commercial Taxes Officer, Ward A Alwar who was an aggrieved party could alone file revisions under sec. 14(1) of the RST Act in the present cases.