JUDGMENT MS. HARSHA DEVANI :- This petition under article 226 of the Constitution of India challenges notice dated September 25, 2001 issued by respondent No. 1, Assistant Commissioner of Sales Tax, under section 67 of the Gujarat Sales Tax Act, 1969 (the Act) for revising the order dated March 31, 1998 of the Sales Tax Officer. The petitioner is working as a contractor for Sardar Sarovar Narmada Nigam Limited (hereinafter referred as, "the Nigam"). The dates of the said works contracts range from July 16, 1990 to May 17, 1993. In all, there were four works contracts to be carried out by the petitioner for the Nigam. Under the provisions of the Act, tax is leviable on works contracts as provided by the Act, as the definition of "sale" in section 2(28)(c) includes transfer of property in goods (whether as goods or in some other form) involved in execution of a works contract. Section 55A of the Act provides for composition of tax in respect of execution of works contract. Under the said section, application is to be made for permission to pay tax as per appendix 2A of the Act by way of lump sum on the total value of the works contract. The application for permission at the relevant time was required to be made in form 35A and rule 33A of the Rules. Under appendix 2A, sales tax was payable under the composition scheme at the rate of two per cent on the total value of works contract. The petitioner, therefore, made application under rule 33A and form 35A for permission to pay sales tax at the rate of two per cent in terms of the provisions of section 55A. The applications were not disposed of by the Sales Tax Department till March 31, 1998 and the petitioner was paying sales tax at the rate of two per cent on the running bills from time to time expecting the grant of such permission in due course before assessment. Sometime in 1995, search and seizure proceedings were undertaken by the Department against the petitioner. Thereafter, the Sales Tax Officer (Enforcement) issued a notice dated February 15, 1995 in form No. 45 enquiring whether applications for composition were filed and whether any order was passed by the authority. Sometime in 1995, search and seizure proceedings were undertaken by the Department against the petitioner. Thereafter, the Sales Tax Officer (Enforcement) issued a notice dated February 15, 1995 in form No. 45 enquiring whether applications for composition were filed and whether any order was passed by the authority. The petitioner replied to the said notice on March 2, 1995 setting out the details of the four contracts as well as enclosing therewith xerox copies of the applications filed by the petitioner under form 35A of the Act. Subsequently, the Assistant Commissioner of Sales Tax (Enforcement) issued a show-cause notice dated March 26, 1996 to the petitioner as to why prosecution should not be initiated for filing wrong return by paying tax at the rate of two per cent only though applications for composition were not made nor granted. The petitioner replied to the said notice on April 2, 1996 producing xerox copies of the applications in form No. 35A as evidence to show that applications were filed in time, though they might not have been disposed of by the concerned Sales Tax Officer. After hearing the petitioner, the petitioner was informed that the said show-cause notice was filed. It appears that pursuant to the clarification sought for from the petitioner, the Nigam had addressed a letter dated March 9, 1995 to the Assistant Commissioner requesting him not to impose litigation on the petitioner for payment of 12 per cent sales tax. A copy of the said letter was forwarded to the Superintendent Engineer, A.P. Main Circle No. 1, Vadodara with a request to obtain the opinion of Legal Advisor to the Nigam as to at what percentage of rate of sales tax is applicable for canal gate works. It appears that thereafter, a meeting took place between the Assistant Commissioner and Chief Engineer in connection with the levy of sales tax on works contracts being executed by the Sardar Sarovar Narmada Nigam Limited wherein, as per the opinion of the Assistant Commissioner (Enforcement), the rate of composition in respect of civil works would be two per cent. It appears that thereafter, a meeting took place between the Assistant Commissioner and Chief Engineer in connection with the levy of sales tax on works contracts being executed by the Sardar Sarovar Narmada Nigam Limited wherein, as per the opinion of the Assistant Commissioner (Enforcement), the rate of composition in respect of civil works would be two per cent. It is the case of the petitioner that during the course of assessment proceedings, the petitioner was informed that out of the four applications made by it under rule 33A and form 35A for permission to pay sales tax at two per cent, the first application dated September 8, 1991 had been found to be entered in the inward register on October 15, 1991 though, the application itself was not found in the papers and was also informed that the other three applications were not found in the case papers nor were they found to be entered in the inward register. The petitioner, therefore, once again furnished Xerox copies of the said applications at the time of assessment. Thereafter, the Sales Tax Officer passed an order of composition under section 55A of the Act on March 31, 1998 which incidentally was also the last date for passing an assessment order. The Sales Tax Officer also finalised the assessment order but before passing the same as per the Department's policy and rules, forwarded the papers to the Assistant Commissioner (Enforcement), Baroda for scrutiny and confirmation. After the papers were returned from the office of the Assistant Commissioner, the assessment order was passed by the concerned Sales Tax Officer. Subsequently, by a notice dated March 14, 2001 issued in form 45, the petitioner was informed that the petitioner was liable to pay sales tax and additional tax of 20 per cent and interest under section 47(4)(a) of the Act and penalty under section 45(6) as the petitioner was not granted permission for composition under section 55A in the assessment period 1990-91. Thereafter, by the impugned notice dated September 25, 2001 issued under section 67 of the Act, the petitioner was called upon to show cause as to why the permission granted on March 31, 1998 for composition under section 55A of the Act should not be cancelled on the ground that there were no applications for composition on the record of the Department and Xerox copies only were filed and, therefore, the rules and regulations in that behalf were not complied with. Being aggrieved, the petitioner has filed the present petition challenging the said notice. Mr. K. H. Kaji, learned advocate appearing on behalf of the petitioner raised three-fold contentions. It was submitted that section 67 of the Act empowers the Commissioner, on his own motion within three years from the date of any order passed by any officer appointed under section 27 to assist him, to call for the record of any such order and pass such order thereon as he thinks just and proper within 12 months from the date of service of notice of revision. It was submitted that in the present case, the order of composition has been made on March 31, 1998 whereas the impugned notice has been issued on September 25, 2001 which is clearly beyond a period of three years from the date of the order passed by the Sales Tax Officer and as such, the impugned notice is clearly barred by limitation. Next, it was submitted that pursuant to the order of composition, the assessing officer had made an assessment order in terms of the composition order and had submitted the same for approval to the Assistant Commissioner and that it was only after the approval had been granted by the Assistant Commissioner that the assessment order had been finalised and passed. It was submitted that in the circumstances, the assessment based upon the composition order having been approved by the Assistant Commissioner, another Assistant Commissioner cannot take the composition order in revision. It was submitted that in the circumstances, the assessment based upon the composition order having been approved by the Assistant Commissioner, another Assistant Commissioner cannot take the composition order in revision. In support of his submission, the learned advocate placed reliance upon a decision of a Division Bench of this High Court in the case of RPG Life Sciences Ltd. v. Commissioner of Sales Tax [2001] 124 STC 157 (Guj) rendered on April 24, 2001 in Special Civil Application No. 521 of 2001 wherein the court had held that once an authority had approved the order, it would not be appropriate for the authority approving the order to exercise powers of revision. On merits, it was submitted that the main ground for revising the order of composition is that the applications made by the petitioner were not found on record. It was submitted that by the notice dated February 15, 1995 issued under section 59 of the Act, the petitioner was called upon to submit details with regard to the applications filed by the petitioner under rule 33A(1) of the Rules in form 35A as well as regards any composition order having been made under section 55A of the Act. It was submitted that pursuant to the said notice, the petitioner had filed a communication dated March 2, 1995 submitting details of the four applications submitted by the petitioner and had also furnished additional set of the applications in form 35A on the record of the concerned officer. It was submitted that at the relevant time, there was no response to the said communication though subsequently, the assessing officer had made assessment. During the course of assessment proceedings, the petitioner was again informed that the applications submitted by the petitioner were not found on record and, therefore, the petitioner had again supplied copies of the applications made by it. It was submitted that at the relevant time, the Sales Tax Officer had not raised any objections with regard to the original applications not being found on record and had, on March 31, 1998, passed the composition order accepting the applications made by the petitioner. It was submitted that there are various circulars issued by the Government extending the time-limit for making the composition applications and that the concerned authority has on several occasions, condoned the delay in filing the applications. It was submitted that there are various circulars issued by the Government extending the time-limit for making the composition applications and that the concerned authority has on several occasions, condoned the delay in filing the applications. Reliance was placed on orders passed by the Commissioner of Sales Tax in the case of M/s. Lloyds Steel Industries Ltd., as well as in the case of Central Tyre Retrading Company (exhibit H(1) and exhibit H(2) of the petition) to submit that in any case, if at all it was the case of the respondents that the original applications were not received by them subsequently, the petitioner had furnished Xerox copies of the applications and the respondents had sufficient power to condone any delay in filing the applications and as such, except for a technical objection, there was no illegality in the order of composition made by the Sales Tax Officer. It was submitted that in the circumstances, there is no question of revising the order of composition on the ground that the applications were not filed. The petition was opposed by Ms. Maithili Mehta, learned Assistant Government Pleader, who has placed reliance upon the averments made in the affidavit-in-reply filed by respondent No. 1. According to the learned Assistant Government Pleader, the applications stated to have been made by the petitioner were not found on the record and that in respect of the application dated October 15, 1991, the same has been inwarded under Inward No. 3062 of the Inward Register of Sales Tax Officer of Division I, Vadodara. That apart from this entry, in spite of verifying from the records, the application is not available on record. It was submitted that even if it is assumed for the sake of argument that the application dated October 15, 1991 had been made, then also, the application would be processed if it was pertaining to a particular contract and not for any prior or subsequent contract. Another submission advanced was that the circulars dated February 6, 1991 and June 9, 1993 extending the period for filing the application, inter alia, stipulated that if an application is made beyond the prescribed time-limit, tax and interest of the particular period were required to be paid. Another submission advanced was that the circulars dated February 6, 1991 and June 9, 1993 extending the period for filing the application, inter alia, stipulated that if an application is made beyond the prescribed time-limit, tax and interest of the particular period were required to be paid. It was submitted that in the present case, the petitioner has not proved even the making of the initial application nor does the petitioner seem to have made the application later on and that even otherwise for the period in question, the petitioner has not paid the interest. Hence, it cannot be said that the so-called applications made by the petitioner were validly made. Next, it was submitted that pursuant to the application in form 35A, the petitioner had not filed returns under form 35C. Hence, the necessary returns which should have been filed have also not been filed by the petitioner. According to the learned Assistant Government Pleader, the provisions of sections 13, 51 and 55 would not apply to a dealer who opts for composition of tax under section 55A of the Act and, therefore, the petitioner has not made any valid application as contemplated under law. It was submitted that insofar as the contention that the respondents had power to condone delay in filing applications is concerned, the same is misconceived inasmuch as the petitioner has not filed any application seeking condonation of delay. As regards the contention that the notice is barred by limitation, reliance was placed upon the decision of this High Court in the case of State of Gujarat v. Jamnagar Motor Stores [1974] 33 STC 353 (Guj), for the proposition that the authority has to start applying its mind within three years and that in the present case application of mind has started within three years and, therefore, the notice of revision was well within the stipulated time period. In conclusion, it was submitted that the impugned notice is well within the jurisdiction and authority of the revisional authority and does not call for any interference by this court and that the petition being devoid of any merit, deserves to be dismissed. From the facts as emerging on record, it is apparent that the petitioner has been executing works contract for the Nigam. From the facts as emerging on record, it is apparent that the petitioner has been executing works contract for the Nigam. Insofar as the works contracts of the nature executed by the petitioner are concerned, in the light of the note annexed to the communication dated March 9, 1995 (exhibit C to the petition), it is apparent that the rate of composition in respect of such civil works is two per cent as opined by the Assistant Commissioner (Enforcement). According to the petitioner, the petitioner had filed the following applications seeking composition of sales tax under section 55A of the Act before the Sales Tax Officer IV, Division I, Vadodara : No. Date of contract Date of application 1. 16-7-90 8-9-91 2. 17-9-91 14-5-92 3. 17-5-93 20-6-93 4. 17-5-93 20-6-93 The applications, therefore, appear to have been made on different dates from September 8, 1991 to June 20, 1993. The petitioner having made applications for composition appears to have been paying sales tax on the works contracts executed by it at the rate of two per cent under the composition scheme. By a notice dated February 15, 1995 issued under section 59 of the Act, the petitioner was called upon to produce details as regards having made application in form 35A in terms of rule 33A(1) of the Rules and as to whether any order had been made in form 35B under rule 33A(2) of the Rules for composition under section 55A of the Act. In reply thereto, the petitioner vide letter dated March 2, 1995 furnished details of the four applications giving the description of the work, reference number and date of the application and the date of posting thereof. The petitioner also stated that no permission had been granted by the Sales Tax Officer for any of the contracts. However, they were paying composition amount at the rate of two per cent for the works contract executed and filing returns accordingly. The petitioner also enclosed therewith additional set of Xerox copies of the applications made by it in form 35A. The petitioner also requested that permission be granted at the earliest. Despite the aforesaid position, there was no response to the said communication as to whether the applications filed by the petitioner were, in fact, received by the respondents or not nor informing the petitioner that such applications were not on record. The petitioner also requested that permission be granted at the earliest. Despite the aforesaid position, there was no response to the said communication as to whether the applications filed by the petitioner were, in fact, received by the respondents or not nor informing the petitioner that such applications were not on record. Thereafter, by a show-cause notice dated March 26, 1996, the petitioner was called upon to show cause as to why penalty should not be levied on it as the petitioner had not paid sales tax at the rate of 14.40 per cent and had paid the same at the rate of two per cent as per the Composition Scheme. The petitioner submitted its reply dated April 2, 1996 after which, according to the petitioner, the notice had been dropped. It is averred in the petition that during the course of assessment proceedings also, the petitioner was informed that the applications were not found on record pursuant to which the petitioner had submitted Xerox copies of the applications again. It may be germane to note that at no point of time during the course of the assessment proceedings or after the letter dated March 2, 1995 of the petitioner stating relevant details of the applications, was the petitioner informed that as the original applications were not found on record, the petitioner's application for composition could not be considered. Thus, it appears that the concerned Sales Tax Officer had accepted the say of the petitioner that it had filed applications as set out in the communication dated March 2, 1995 and had accepted the Xerox copies of the same. Thereafter, the Sales Tax Officer made the order under section 55A granting composition in form 35B in terms of rule 33A of the Rules on March 31, 1998. Based on the said composition order, the Sales Tax Officer also framed an order of assessment which was sent for approval to the concerned Assistant Commissioner. A perusal of the said assessment order indicates that the same is based upon the composition order inasmuch as the tax assessed thereon is at the rate of two per cent in terms of the composition order. A perusal of the said assessment order indicates that the same is based upon the composition order inasmuch as the tax assessed thereon is at the rate of two per cent in terms of the composition order. The said assessment framed by the Sales Tax Officer was sent for approval to the Assistant Commissioner who made some modifications in the said order, however, he did not raise any objection to the same being made in terms of the composition order. In the circumstances, it is apparent that the Assistant Commissioner had approved the order of assessment which was in terms of the composition order. Thereafter, by the impugned notice, the order made under section 55A of the Act permitting composition of tax is sought to be taken in revision by the Assistant Commissioner, in exercise of powers under section 67 of the Act. The composition order under section 55A of the Act as noted hereinabove has been made on March 31, 1998 and the impugned notice has been issued on September 25, 2001 which is clearly beyond a period of three years from the date of the said order. Section 67 of the Act, inter alia, lays down that the Commissioner on his own motion within three years from the date of order passed by any officer appointed under section 27 to assist him, may call for and examine the record of any such order and pass such order thereon as he thinks just and proper within 12 months from the date of service of notice of revision. In the facts of the present case, the impugned notice has clearly been issued after the expiry of the period of three years from the date of the order sought to be revised, that is, the period of limitation prescribed under clause (a) of sub-section (1) of section 67 and as such, the same is apparently barred by limitation. Another aspect of the matter is that as noticed hereinabove, based on the composition order, the assessing officer framed an assessment which was submitted to the Assistant Commissioner for approval. The Assistant Commissioner approved of the assessment framed subject to certain modifications; however, there was no objection to the same being in terms of the composition order. Thus, it can be assumed that indirectly, the Assistant Commissioner had approved of the composition order. The Assistant Commissioner approved of the assessment framed subject to certain modifications; however, there was no objection to the same being in terms of the composition order. Thus, it can be assumed that indirectly, the Assistant Commissioner had approved of the composition order. In the circumstances, it appears that the learned advocate for the petitioner is justified in contending that once an order has been passed with the approval of the Assistant Commissioner, another Assistant Commissioner cannot sit in revision over such order. It may also be pertinent to note that against the assessment order passed by the Sales Tax Officer, the petitioner had gone in appeal before the Assistant Commissioner (Appeals) under section 65 of the Act. The said appeal came to be dismissed by observing that the sales tax had been paid at the rate of two per cent. Hence, the assessment has become final as being confirmed by the Appellate Commissioner. On the merits of the case, as noted hereinabove, it is the case of the petitioner that the petitioner had submitted applications on various dates, namely, September 8, 1991, May 14, 1992, June 20, 1993 and June 20, 1993, respectively. If the facts stated in the reply dated March 2, 1995 addressed by the petitioner to the office of the Assistant Commissioner are accepted to be correct, the said applications had been made within the prescribed period of limitation under section 55A of the Act. It is the case of the respondents that the said applications are not found on record and that except in case of the first application where the same is found to be inwarded in the inward register, there is no evidence in respect of the other three applications having even been received by the Department. In this regard, it may be pertinent to note that on March 2, 1995, the petitioner had submitted to the assessing officer the details of the applications as well as the details of the posting thereof and had also submitted Xerox copies of the said applications. At no point of time was the petitioner informed that the applications having not been found on the record, the same shall be considered as the petitioner not having filed any application under section 55A of the Act. At no point of time was the petitioner informed that the applications having not been found on the record, the same shall be considered as the petitioner not having filed any application under section 55A of the Act. In fact, on the basis of the applications on record or on the basis of the Xerox copies filed by the petitioner, the then Sales Tax Officer in 1998 passed the composition order under section 55A of the Act. Though, it is the case of the respondents that the original applications are not found on record, it may be noted that though the record of the case was produced before this court for its perusal, for reasons best known to the concerned authorities the record of the composition application was not produced before the court. Hence, the court was not in a position to ascertain as to on the basis of which applications the concerned officer at the relevant time had passed the order under section 55A of the Act. Be that as it may, as noticed earlier, the respondents have never brought it to the notice of the petitioner that the original applications were not on record and had never informed the petitioner that since the original applications were not found on record, the applications under section 55A of the Act would be treated as not filed. Instead, the Sales Tax Officer at the relevant time has chosen to pass a composition order on the basis of the applications filed by the petitioner. If it was the case of the respondents that the original applications filed by the petitioner were not found on the record and therefore, no order under section 55A of the Act could be passed, it was incumbent upon the concerned authorities to inform the petitioner as regards the same at the relevant point of time. Had the petitioner been informed about the non-consideration of the applications under section 55A of the Act, the petitioner could have filed fresh applications along with applications for condonation of delay. However, the respondents having failed to point out the aforesaid facts to the petitioner cannot now seek to lay the fault at the door of the petitioner and state that as the applications were not found on record, the composition order could not have been passed. However, the respondents having failed to point out the aforesaid facts to the petitioner cannot now seek to lay the fault at the door of the petitioner and state that as the applications were not found on record, the composition order could not have been passed. The respondents by their very conduct as aforesaid are now estopped from contending that since the original applications are not found on record, the order of composition could not have been passed. In the light of the aforesaid discussion, it is apparent that apart from the fact that the impugned notice is barred by limitation as the same has been issued beyond the period prescribed under section 67(1)(a) of the Act, even otherwise on merits also, the said notice cannot be sustained for the reasons stated hereinabove. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned notice dated September 25, 2001 issued by respondent No. 1 under section 67 of the Act is hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs.