TaxTMI 
TaxTMI 
2009 (7) TMI 1158
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....aged in the execution of works contracts, which includes erection, testing and commissioning of electrical equipment and other civil contracts. The petitioner was awarded works contracts for erection, testing and commissioning including civil work at Ramgarh sub-station. The petitioner said to have carried the entire work and filed returns and deposited total tax amount. According to the petitioner, the assessment order for the financial year 2002-03 was passed on December 17, 2004 and demand notice of excess payment was issued on January 4, 2005. Similarly, assessment order for 2003-04 was passed on March 7, 2005 and notice of excess payment was issued on April 1, 2005. For the assessment year 2004-05, an assessment order was passed on November 30, 2005 and notice of excess payment was issued on November 30, 2005. The petitioner accordingly applied on June 27, 2005 for refund of the excess amount of tax for the financial years 2002-03 and 2003-04. The petitioner also applied on December 18, 2005 and May 15, 2008 for refund of the excess amount of tax for the financial years 2004-05 and 2005-06, respectively. When the refund applications were not processed and order of refund of....
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....he case may be, has given the dealer, or the person concerned a reasonable opportunity of being heard." From bare perusal of the aforesaid provision, it is clear that the authority appointed under section 9 of the Act or the Tribunal may review any order passed by it, if there appears mistake in the assessment order, which is apparent from the record. Rule 32 of the Rules reads as under: "32. Review.-(1) When any authority appointed under section 9 reviews under section 47 any order passed under the Act it shall record reasons for doing so. (2) Save with the previous sanction of the Commissioner or an authority specifically authorised by him in this behalf no authority appointed under section 9, other than the Commissioner, shall review any such order except before the expiry of twelve months from the date of passing of the order which is sought to be reviewed. (3) Save with the previous sanction of the Commissioner or an authority specifically authorised by him in this behalf, no authority appointed under section 9, other than the Commissioner, shall review any order which has been passed by any of its predecessors in office." Sub-rule (1) of rule 32 aforesaid pr....
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.... articles 226 and 227 of the Constitution of India seeking refund of the amount. Meanwhile the Commissioner of Commercial Taxes applied to the Superintendent of Sales Tax for review of the order of assessment dated February 11, 1956. The application was made on August 11, 1957. The Corporation raised objection that the officer has no power to review the order of February 11, 1956, i.e., after 12 months from the date of the order. The Assistant Commissioner of Sales Tax overruled that objection. The Corporation then moved the High Court and after being unsuccessful thereat moved the Supreme Court. One of the contentions raised before the Supreme Court was that review could only be made with the prior sanction of the Commissioner and that too within 12 months of making of the order. Under the old Sales Tax Act, 1947, the power of review was conferred under section 24(5) of the Act, which reads: "24. (5) Subject to such rules as may be prescribed, any order passed under this Act or the rules made thereunder by any person ppointed under section 3 may be reviewed by the person passing it or by his successor-in-office." Rule 39 of the old Bihar Sales Tax Rules, 1949....
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....or review, the requirements of sub-rule (2) as also of sub-rule (3) are fully satisfied and express consent is also available if the order is required to be reviewed." Now the question that arises for consideration is as to whether, if the limitation of twelve months as contemplated in sub-rule (2) of rule 39 does not apply in cases where review proceeding is initiated at the instance of Commissioner, Commercial Taxes according sanction after 12 months from the date of assessment order, then what should be the limitation within which such power is to be exercised by the Commissioner under the aforesaid rule. In other words, whether sub-rule (2) of rule 39 confers unrestricted and unlimited power to the Commissioner to accord sanction to the authority to initiate review proceeding. A similar question with regard to revisional power of the Commissioner under section 46 of the Bihar Finance Act was considered by a Division Bench of this court in the case of Shivam Coke Industries v. State of Jharkhand [2008] 18 VST 289; [2008] 2 JCR 267, wherein the court observed: "62. Suo motu acts and power is to be exercised judicially, i.e., ejusdem generis. Therefore, the suo motu revis....
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....-04 and 2004-05, notices of excess payment were served upon the assessee immediately after passing of the assessment order and in response to that, the petitioner-assessee submitted refund applications on June 27, 2005 for the financial years 2002-03 and 2003-04. Similar application for refund was submitted on December 18, 2005 for the financial year 2004-05. The respondents sat tight over the matter and did not pass order for refund of excess amount of tax to the petitioner. The petitioner was then compelled to file a writ petition being W.P.T. No. 4858 of 2008 in September, 2008 seeking a direction for refund of excess amount of tax paid by the petitioner. It was only after notice to the writ application was issued, the respondents before filing the counter-affidavit obtained order of sanction on November 11, 2008 by the Commissioner for review of the assessment order of the aforementioned financial years. Prima facie, therefore, the action taken by the respondents is not only mala fide, but suffers from biasness also. After having considered the entire facts of the case and the law discussed hereinabove, in our considered opinion, the orders passed by the Commissioner for rev....