M/S. OCL INDIA LTD.versusSTATE OF ORISSA AND ORS.

A                            M/S. OCL INDIA LTD.
                                         v.
                         STATE OF ORISSA AND ORS.

                              DECEMBER 17, 2002

B    [SYED SHAH MOHAMMED QUADRI AND ARIJIT PASA YAT, JJ.]


          Orissa Sales Tax Act, 1947/0rissa Sales Tax Rules, 1947:

          S.23(4)(a)lr.80-Revisional power of Commissioner-Delegated under
C Notification No. l-ST-76173 14271 dated 3-8-1993 to and exercised by Assistant
    Commissioner-However, the proceedings were dropped-Later Commissioner
   exercising the revisional power uls. 23(4)(a) and r.80, again issued show
   cause notice to assessee to enhance the turnover determined by Sales Tax
   Officer-Held, in regard to the orders passed by the Sales Tax Officer, after
I) the delegation, the Assistant Commissioner was competent to revise and, in
   fact, he did exercise the power to revise the order of the Sales Tax Officer-
    Thus, the power of the Commissioner has been exhausted by the Assistant
   Commissioner and the Commissioner cannot exercise the delegated power
   over again-Administrative Law-Delegation of power.

E         State of Orissa v, Commissioner of Land Records and Settlement,
    Cuttack, 119981 7 SCC 162, relied on.

         J.C. Budharaja v. State of Orissa and Ors., 118 STC 140 approved.

          Commissioner of Sales Tax v. Halari Store, 107 STC 579 and State of
F   Orissa v. Krishna Stores, 104 STC 594, distinguished.

          Orient Paper Mills v. State of Orissa, (1988) 70 STC 333, referred to.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8534 of2002.

G         From the Judgment and Order dated 22.7.2002 of the Orissa High Court
    in OJC No. 930/98.

        V.A. Bobde, Ashok Parija, K.K. Lahiri, Gaurav Kejriwal and Mrs. Sumita
    Mukherjee for the Appellant.

H                                       496
                     M/S. OCL INDIA LTD. v. STATE                         497
      D.A. Dave and Mrs. Kirti Mishra for the Respondent.                         A
     The following Order of the Court was delivered :

      Leave is granted.

      The short question that arises for consideration in this appeal, which      B
arises from the judgment of a Division Bench of the High Court of Orissa in
O.J.C. No. 930of1998, dated July 22, 2002, is:

           "Whether after the Assistant Commissioner, as a de legatee of the
       power of the Commissioner Sales Tax, under Section 23(4)(a) of the
       Orissa Sales Tax Act, 1947 read with rule 80 of the Orissa Sales Tax       C
       Rules, 1947, has exercised revisionaljurisdiction in respect of an order
       of the Sales Tax Officer, the Commissioner can exercise the power
       under the said provision to revise the same order over again?"

      The facts that gave rise to this appeal may be briefly noted here.
                                                                                  D
       The appellant-assessee, a company registered under the Companies
Act, 1956, is a manufacturer of cement and refractory products. It is a registered
dealer under the Orissa Sales Tax Act, 1947 (for short, 'the Act'). For the
Assessment Year 1986-87, the Sales Tax Officer passed an order of assessment
under the Central Sales Tax Act on October 20, 1987. On December 13, 1995,
the Assistant Commissioner, in exercise of the delegated power, issued a E
show cause notice to the a~sessee to revise the order passed by the Sales
Tax nfficer. However, by order dated January 3, 1996, he dropped the
proceedings. While so, on January 2, 1998, the Commissioner, purporting to
exercise the revisional power under Section 23(4)(a) of the Act and Rule 80
of the Rules, issued notice to show cause as .to why the turnover determined p
by the Sales Tax officer for the Assessment Year 1986-87 should not be
enhanced. Challenging the validity of the said notice, the appellant filed O.J.C.
No. 930/98 before a Division Bench of the High Court of Orissa. The High
Court dismissed the writ petition on July 22, 2002 which is under challenge
in this appeal.
                                                                                  G
      Mr. Bobde, the learned senior counsel for the appellant, has contended
!hat once the Commissioner has delegated his revisional power and the
Assistant Commissioner-delegatee has exercised the said power and decided
the matter, it was not open for the Commissioner to exercise the very same
power and, therefore, the High Court has erred in not quashing the impugned       H
    498                              SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.

A show cause notice issued by him, Mr. Dave, the learned senior counsel
    appearing for the Revenue, has submitted that though the Commissioner has
    delegated power, he was not denuded of the statutory power so he could
    have stiil exercised the power under the said provisions.

             Under Section 23(4}(a) of the Act, the Commissioner of Sales Tax has
B power, either suo motu or on an application by a dealer or a person, to revise
    any orders made under the Act or rule made thereunder by any person other
    than the Tribunal appointed under sub-section (3) of Section 3 of the Act.
    That power was delegated by the Commissioner in favour of the Assistant
    Commissioner, vide Notification No. l-ST-76/73 14171, dated August 3, 1963.
c            We may notice here Section 23(4)(a) of the Act which is in the following
    terms:

              "Section 23-Appeals and revisions.

              (I) to (3) ............ .
D
                    (4)(a) Subject to such rules as may be made and for reasons to
              be recorded in writing, the Commissioner may, upon application by a
              dealer or person or on his own motion, revise any order made under
              this Act or the Rules made thereunder by any person other than the
              tribunal, appointed under sub-section (3) of section 3 to assist him:
E
                    Provided that the Commissioner shall not entertain any such
              application for revision if the dealer or the person filing the same
              having a remedy by way of app.eal under sub-section (I), or sub-
              section (3) ~id not avail of such remedy or the application is not filed
              within the prescnbed period.
F
                   Exp/anation.-Any provision contained elsewhere in this Act
              which provides for determination of any specific matter shall not
              debar the Commissioner from determining such matter in exercise of
              the powers conferred upon him under this sub-section."

G       A perusal of clause (a) of sub-section 4 afore-quoted, shows that the
  Commissioner is conferred with the power to revise any order made under the
  Act or the Rules made thereunder by any person other than the Tribunal
  appointed under sub-section (3) of section 3 of the Act to assist him, either
  on an application made by a dealer or any person or suo motu. The proviso
H thereto bars the exercise of revisional power on the application of a dealer or
                      MIS. OCL INDIA LTD. v. ST ATE                         499
any person where remedy of appeal under sub-section (I) and sub-section (3)         A
of Section 23 has not been availed or where the revision was not filed within
the prescribed period of limitation.

      Rule 79 of the Rules deals with exercise of the revisioilal power on the
application of a dealer or any person and Rule 80 of the Rules deals with
exercise of power suo motu by the Commissioner. Here, we are concerned with         B
the latter Rule, which runs thus:

           "Rule 80: Revision by the Commissioner suo motu.-The
       Commissioner may on his own motion at any time within three years
       from the date of passing of any order by the Sales Tax Officer or            C
       within iwo years from .the date of passing of any order by the Additional
       commissioner, Special Additional commissioner or Assistant
       Commissioner, as the case may be, call for records of the proceedings
       in which such order was passed and if he considers that any order
       passed therein is erroneous in so far as it is prejudicial to the interest
       of the revenue he may after giving the dealer an opportunity of being        D
       heard and after making or causing to be made such enquiry as he
       deems necessary revise any such order."

      A plain reading ofthid rule disclose that the Commissioner can exercise
the revisional jurisdiction suo motu within the period specified-in the case
of an order passed by the Sales Tax Officer, within three years from the date E
of passing of the order and in the ease of an order passed by the Additional
Commissioner, Special Additional Commissioner or Assistant Commissioner,
as the case may be, within two years from the date of passing of the order.
The revisional jurisdiction can be exercised ifthe Commissioner, after calling
for the records of the proceedings in which the order sought to be revised F
was passed, considers that the order is erroneous insofar as it is prejudicial
to the interest of the Revenue. Where these jurisdictional facts are present
to invoke the revisional power, the Commissioner has to provide the dealer
or a person affected thereby an opportunity of being heard and after making
or causing to be made such enquiry as he deems necessary, may revise any
such order. There are two situations in which an order in question cannot be G
revised and they are; (I) where an appeal against the order is pending before
the appellate authority under section 23, or (2) where time-limit for filing an
appeal under section 23 has not expired. The same conditions will govern the
exercise of the revisional power by the de legatee of the Commissioner under
Notification No. I-ST-76/73 14171 dated the 3rd August, 1963. The notification, H
    500                       SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A insofar as it is relevant for our purpose, says that with the prior approval of
    the State Government, the Commissioner has delegated his power and duties
    under the Act and the Rules framed thereunder as specified in the Schedule
    annexed thereto to Assistant Commissioner of Sales Tax and directed that the
    said powers and duties shall be exercised and discharged by the said Assistant
B   Commissioner with their respective jurisdiction.

             It will be useful to refer to the schedule here.

                                     "SCHEDULE''

       SI.      Provisions of the                   Description of the powers and
c      No.      Orissa Sales Tax Act, 194 7, and    duties delegated
                Rules made thereunder
                specifying the powers and
                duties delegated.
                          2                              3
D
       l.       Sub-section (4)(a) of section 23    Powers to revise assessment
                of the Orissa Sales Tax Act, 1947   order passed by the Sales Tax
                read with rule 80 of the Orissa     Officer and Assistant Sales Tax
                                                    Officer sou motu provided that


                                                                                      -
                Sales Tax Rules, 1947.
E                                                   no appeal has been filed
                                                    against such orders."



          It may be seen that the power that had been delegated is under clause
    (a) of sub-section (4) of Section 23 of the Act and Rule 80 of the Rules. In
F   Column 3 the description of the powers and duties delegated are given as
    follows:-

                 "Powers to revise assessment order passed by the Sales Tax
             Officer and Assistant Sales Tax Officer suo motu provided that no
             appeal has been filed against such orders."
G
        Thus, it is clear that the power conferred on the Assistant Commissioner
  was under clause (a) of sub-section (4) of section 23 of the Act read with rule
  80 of the Rules. The Commissioner has revisional power to call for the records
  and revise the orders not only of the Sales Tax Officer but also of the
H Assistant Commissioner, Additional Commissioner and Special Additional
                       MIS. OCL INDIA LTD. v. STATE                        501
Commissioner; the power that was delegated to the Assistant Commis$ioner           A
was confined to the orders passed by the Sales Tax Officers. In the result the
Commissioner retained his power to revise the orders- passed by the Assistant
Commissioner, Additional Commissioner and Special Additional Commissioner.
However, in regard to the orders passed by the Sales Tax Officer, after the
delegation, the Assistant Commissioner was competent to revise and, in fact        B
he did exercise the power to revise the order of the Sales Tax Officer, after
issuing a show cause notice dated December 13, 1995. If that be so, the power
of the Commissioner (the delegator) under the afore-quoted provisions has
been exhausted by the Assistant Commissioner and the Commissioner cannot,
in law, exercise the delegated power over again.

       It is no doubt true that the Commissioner is not denuded of the statutory
                                                                                   c
 power of revision after delegation, but that, in view of the said notification,
 only means that he can resume that power or cancel the delegation of revisional
 power to the Assistant Commissioner. That, by no stretch of imagination, can
 be construed to mean that once the orders have been examined under the
 revisional power by the Assistant Commissioner (the delegatee), the same          D
 orders can again be subjected to the revisional jurisdiction by the
.Commissioner.

         The attention of the leariied Judges of the High Court was invited to
  an earlier decision of a Division Bench of the High Court in Orient Paper
  Mills v. State of Orissa, (1988) 70 STC 333 but they got over it referring to E
  two judgments of this Court in Commissioner of Sales Tax v. Halari Store,
' 107 STC 579 and State ofOrissa v. Krishna Stores, (104 STC) 594. In Our view,
  those judgments of this Court do not deal with the point in issue, here. The
  Division Bench was therefore, not right in not following the said decision of
  the coordinate bench which was binding on it. Further, yet another judgment p
  of a Division Bench of the Orissa High Court in J.C. Budharaja v. State of
  Orissa and Ors., (118 STC 140) is brought to our notice. One of us Hon'ble
  Arijit Pasaya!, CJ, (as he then was) was a party to it. Jn that decision the point
  was exhaustively dealt with to hold that the Commissioner did not have power
  to revise the order under the afore-mentioned provision, after the Assistant
  Commissioner has, in exercise of the delegated power, exercised the jurisdiction G
  in respect of an order of the Sales Tax Officer. We find in that decision a
  reference to the judgment of this Court in State of Orissa v. Commissioner
  of Land Records and Settlement, Cuuack, [1998] 7 SCC 162 which virtually
  covers the point against t~e Revenue. In that case tbe statutory power of
  revision of Board of Revenue was delegated to the Commissioner. Jn para 25 H
    502                     SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A of the judgment, it was laid down that the Board could not revise the orders
    passed by a delegatee, the Commissioner.

            For all these reasons, we are unabfo to sustain the order under challenge.
    It is, accordingly, set aside. The impugned notice is quashed by allowing the
    writ petition.
B
        The appeal is, accordingly, allowed. In the circumstances of the case,
    we make no order as to costs.

    RP.                                                             Appeal allowed.