TaxTMI 
TaxTMI 
1997 (1) TMI 451
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...., 1970, the vigilance unit of the Sales Tax Department seized the books of account and other documents of the respondent. On the basis of the report which was submitted by the vigilance unit the assessment for assessment year 1969-70 was reopened. The respondent was reassessed under section 12(8) of the said Act under an order dated 27th May, 1972. By another order of the same date, namely 27th May, 1972, an assessment order for assessment year 1970-71 was also passed under section 12(4) of the said Act. The respondent filed appeals in respect of both these orders. The appeals were defective. The requisite court fees were not paid and the memo of appeal did not contain grounds of appeal. The respondent was called upon to remove these defects by the office of the Sales Tax Department. But despite reminders and notices, the respondent did not remove these defects; with the result that the appeals were summarily rejected under rule 49 of the Orissa Sales Tax Rules. By notices dated 15th March, 1975, issued under rule 80 of the Orissa Sales Tax Rules, the Commissioner of Sales Tax in exercise of his powers under section 23(4) of the said Act proposed revising the assessment order....
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....he Commissioner shall not entertain any such application for revision if the dealer filing the same having a remedy by way of appeal under sub-section (1), or sub-section (3), did not avail of such remedy or the application is not filed within the prescribed period." Rule 80 of the Orissa Sales Tax Rules is as follows: "80. The Commissioner may of his own motion, at any time within three years from the date of passing of any order by the Assistant Sales Tax Officer or by the Sales Tax Officer and within two years from the date of passing of any order other than an appellate order by the Additional Commissioner, Deputy Commissioner or the Assistant Commissioner, as the case may be, call for the record of the proceedings in which such order was passed and revise any such order." The respondent has contended that the Commissioner has no power to suo motu revise the orders dated 27th May, 1972 of the Sales Tax Officer because in the present case appeals were preferred by the respondent from the said orders of the Sales Tax Officer before the Assistant Commissioner of Sales Tax. These appeals were rejected on account of the respondent's failure to cure various defects. It i....
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....ssee is correctly assessed relating to his tax liability. If there is an appellate authority which has considered the assessment order then the Commissioner cannot suo motu revise the order. The department would then have to follow the procedure laid down for challenging the appellate order. When, however, an appeal is not accepted for consideration at all because of defects there is no question of the department being required to follow the procedure laid down for challenging such an order. Rule 80, when it refers to the Commissioner exercising a suo motu power of revision in respect of orders other than appellate orders, clearly contemplates an appellate order which has considered the original assessment order on merit in some form or the other. An order rejecting an appeal at the stage of filing cannot be considered as an appellate order in the context of rule 80. Our attention has been drawn by learned advocate of the respondent to somewhat similar provisions of section 263 of the Income-tax Act of 1961, and cases relating to it. We will refer only to a few of those cases. Under that section the Commissioner has the power to suo motu revise any order passed by the Income-tax....
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....was required to consider whether the order of the Income-tax Officer registering the firm can be revised by the Commissioner under section 33B if he considers that as erroneous and prejudicial to the revenue. This Court held that he could. The order of registration was a separate non-appealable order. While so holding, this Court said that if an appeal is provided against an order passed by a Tribunal, the decision of the appellate authority is the operative decision in law if the appellate authority modifies or sets aside the decision of the Tribunal. It is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirmed the decision of the Tribunal. As a result of the confirmation or affirmation of the decision of the Tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. The respondent strongly relies on these observations. However, in that case the court was not required to consider whether the power of revision could be exercised in....
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....Commissioner from exercising power under section 23(4) read with rule 80. Under section 23(4) the Commissioner can, inter alia, on his own motion revise any order made under this Act or the Rules by any person other than a Tribunal or an additional Tribunal. Therefore, under this sub-section the Commissioner is not expressly prevented from revising an appellate order if made by any person other than the Tribunal or an Additional Tribunal. Under rule 80, however, the Commissioner may, of his own motion revise any order passed by the Assistant Sales Tax Officer or the Sales Tax Officer within three years. The Commissioner can also suo motu revise within two years any order other than an appellate order passed by the Additional Commissioner, the Deputy Commissioner or the Assistant Commissioner. In the context of section 23(4) where the words "any order other than an appellate order" are absent, the prohibition against revising an appellate order in rule 80 should be taken as applying only to an appellate order in its full sense, i.e., an order which is passed after considering any issue arising in appeal. It would not cover an order of rejection under rule 49(1), when the appeal is n....