TaxTMI 
TaxTMI 
2008 (3) TMI 648
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....he petitioner is a proprietory concern dealing mainly in fertilizers and maize seeds in the name and style of M/s. Vijay Kumar and its place of business is at Musarak in the district of Saran. According to the petitioner, it is carrying on the business of fertilizers, etc., which is tax-paid goods and entire purchases have been made after paying sales tax from M/s. Hindustan Lever Chemicals Ltd., from its sale point at Patna. According to it, the entire purchases are supported by form IX-C and as such, no tax was payable by it. Ex parte assessments for the years 1999-2000 and 2000-01 were made by the Assistant Commissioner of Commercial Taxes having tax demand of Rs. 3,54,588. According to the petitioner, since its business was closed in the year 2004, it was not in a position to deposit 20 per cent of the tax assessed in order to invoke the remedy of appeal and as such, filed revision application before the Commissioner of Commercial Taxes under section 46(4) of the Act, who dismissed the revision application by order dated March 16, 2006 on the ground that the order of the assessing officer, is not prejudicial to the interest of the Revenue. Accordingly, it held that the case doe....
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.... where he himself has on his own motion called for and examined the records of any proceeding or certain irregularities and illegalities in respect of an order passed in a proceeding are brought to his notice by an assessee. Ultimately the Commissioner may refuse to exercise his jurisdiction under sub-section (4)(a) on the ground that the assessee had not exhausted the remedy by way of an appeal under the statute or on any such germane ground which is an altogether different matter. But to hold that the Commissioner is debarred from exercising his suo motu power solely on the ground that the information brought to the notice at the instance of an assessee would be contrary to the wide language used in sub-section (4)(a) of the Act, would be contrary to the normal principle of construction of statute which we have already discussed." Ms. Nilu Agrawal, Standing Counsel XIX, however, submits that the language of section 46(4) of the Act, being plain, clear and unambiguous, its effect has to be given. She points out that the condition precedent for exercise of power under section 46(4) of the Act, is that the order passed has to be prejudicial to the interest of the Revenue. Accordin....
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....ication without going into its merit on the ground that it is not prejudicial to the interest of the Revenue. Nothing has been shown to establish that the order in fact is prejudicial to the interest of Revenue. In the face of it, I am of the opinion that the Commissioner did not err in dismissing the revision application. Now, reverting to the decision of this court in the case of Rakesh Kumar v. State of Bihar [1995] 2 PLJR 743, the same is clearly distinguishable. In the said case, this court was considering the Commissioner's power of revision under section 46(4)(a) of the Act before its amendment by Bihar Taxation Law (Amendment) Act, 2004. Section 46(4) of the Act before and after its amendment has been quoted in the preceding portion of the judgment and its comparative study will clearly show that the restriction imposed on the Commissioner by Legislature that order "is prejudicial to the interest of Revenue" did not exist earlier. This court interpreted the provision as it stood earlier and hence the said interpretation shall not hold the field, after its amendment. It is contended that in order to avail of the remedy of appeal, the petitioner is required to deposit ....
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....(4) of the Act, shall render the provision discriminatory in nature. It is not the case of the petitioner that the aforesaid provision is beyond the legislative competence or is ultra vires on any other count. I do not find any substance in this submission. Section 45(1), (2) and (3) of the Act, which is relevant for the purpose, reads as follows: "45. Appeal.-(1) Subject to such Rules as may be made by State Government under this part any dealer objecting to an order of assessment or penalty or both passed by the prescribed authority against him, or a person objecting to an order of penalty passed against him or an order under section 27 may appeal to the Joint Commissioner or the Deputy Commissioner specially authorised in this behalf. (2) And where an order of assessment or penalty against a dealer has been passed under section 17 or 19 by an authority other than the prescribed one as a consequence of the proceeding having been transferred by the Commissioner under sub-section (5) of section 9, the dealer may appeal in the prescribed manner to the authority next above the officer passing that order, not being an authority below the rank of a Joint Commissioner. (3) No appeal....