2004 (11) TMI 552 - HC - VAT and Sales Tax

Court rejects challenge to exhibit P10, vacates P17 order, allows partial petition.

The court rejected the challenge against exhibit P10 order, deeming it issued within a reasonable time frame. Regarding the challenge against exhibit P17 ... - Issues:1. Challenge against exhibit P10 order based on limitation.2. Challenge against exhibit P17 order on merit.Analysis:1. Challenge against exhibit P10 order based on limitation:The petitioner contested the timeliness of exhibit P10 order issued by the Commissioner of Commercial Taxes under section 45A(5) of the Act. The petitioner argued that the order was issued after a significant delay of four years, which they deemed arbitrary and time-barred. The Government Pleader, however, contended that the order was issued within four years from the date of the previous order, thus falling within a reasonable period. The court acknowledged previous decisions emphasizing the need for revisional orders to be passed within a reasonable time frame. It was noted that the absence of a statutory period of limitation does not absolve the authority from acting promptly. The court highlighted that the determination of a 'reasonable period' is case-specific and not a fixed duration. Ultimately, the court rejected the challenge against exhibit P10 order, deeming it to have been issued within a reasonable time frame.2. Challenge against exhibit P17 order on merit:The challenge against exhibit P17 order revolved around the Deputy Commissioner's jurisdiction to set aside an assessment modified in appeal. The Deputy Commissioner, in this case, invoked section 35(1) of the Act to remand the assessment for fresh consideration after exhibit P14 order was issued by the Deputy Commissioner (Appeals). The petitioner argued that the Deputy Commissioner lacked the authority to interfere with the appellate order modifying the assessment. The court concurred with this argument, highlighting that section 35(1) prohibits the Deputy Commissioner from tampering with issues decided in appeal. The court emphasized that the proper recourse for the Deputy Commissioner would have been to request rectification of the appellate order or file a second appeal based on exhibit P10 revisional order. Since the Deputy Commissioner overstepped his jurisdiction by interfering with the appellate order on the same issue decided in appeal, the court ruled exhibit P17 to be without authority and vacated the same. The court suggested that if the department wished to challenge the modified assessment, they should pursue a second appeal.In conclusion, the court allowed the original petition to the extent indicated above and dismissed the order on C.M.P No. 36391 of 1997 in O.P. No. 20288 of 1997(M).