2013 (12) TMI 1078 - HC - VAT and Sales Tax

Court dismisses petition challenging VAT Act revision powers, advises appeal filing over direct revision.

M/s. National Thermal Power Corporation Limited And Another Versus Additional Commissioner, Commercial Tax And Other

The court dismissed the writ petition challenging the order declining suo motu revision powers under Section 47 of the VAT Act. It was held that the ... Jurisdiction of Commissioner - Suo motu power of revision - Invocation of power u/s 47 - Held that:- Commissioner on his own motion may call for the record of the proceeding in which any order was passed by any officer specified in clauses (c) to (f) of sub-section (1) of Section 3. This provision further provides that the Commissioner after affording an opportunity of being heard to the dealer, may pass such order thereon, not being an order prejudicial to the dealer within a period of six months from the date of initiation of proceedings. Meaning thereby, that such powers can be exercised by the Commissioner on his own motion and not at the instance of the dealer. It is not in dispute that against original assessment order, Annexure-P/2, dated 31-01-2012, the remedy of filing an appeal under Section 46 of the VAT Act was available to the petitioner. Apart from this, there is also statutory provision of preferring a second appear, but it appears that the petitioner has not invoked the statutory remedy of appeal against the impugned order, but had moved an application before the Commissioner invoking suo motu powers of revision. When remedy of filing an appeal against the impugned order is provided, the petitioner ought to have availed the said remedy, however bypassing the statutory remedy of appeal the petitioner had approached the Commissioner seeking suo motu power of revision, which in the peculiar facts and circumstances of the case, has rightly been declined by the Commissioner - No merit in petition - Decided against Appellant. Issues:Challenge to order declining suo motu revision powers under Section 47 of the VAT Act based on interpretation of the phrase 'on his own motion.'Analysis:The petitioner challenged an order declining suo motu revision powers under Section 47 of the VAT Act, arguing that the phrase 'on his own motion' includes the assessee's instance. The petitioner cited a judgment from the Punjab & Haryana High Court to support this contention. The government advocate, however, argued that Section 47 does not allow for invoking revision powers at the instance of the assessee. Additionally, it was highlighted that the petitioner had not availed the remedy of filing an appeal before seeking revision by the Commissioner.The court examined Section 47 of the VAT Act, which empowers the Commissioner to call for records and make inquiries on his own motion. It was noted that the provision does not allow for exercising these powers at the instance of the dealer. The court emphasized that the petitioner had the option to appeal against the original assessment order but chose to bypass this statutory remedy and directly approached the Commissioner for revision. Citing the judgment from the Punjab & Haryana High Court, the court clarified that the power of revision 'on his own motion' does not extend to the assessee in this case.Ultimately, the court found no merit in the writ petition and dismissed it at the admission stage. The petitioner was advised to file an appeal against the impugned order if desired. No costs were awarded in this matter.