TaxTMI 
TaxTMI 
2017 (5) TMI 1543
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....rh Value Added Tax Act, 2005 would apply. Therefore, this order will govern the disposal of W.P.(T)Nos.24/2017, 25/2017 and 26/2017 also. 4. M/s. Kishan Lal and Company, petitioner No.1 herein, is a proprietorship firm. The Assistant Commissioner, Commercial Tax passed an order of assessment for the period from 1-4-2006 to 31-3-2007 under the provisions of the Chhattisgarh Value Added Tax Act, 2005 (for short 'the Chhattisgarh VAT Act') by order dated 22-1-2008 and that order was reassessed under Section 22 (1) of the Chhattisgarh VAT Act by the Additional Commissioner by order dated 7-1-2013. Thereafter, revision petition was preferred by the petitioners under Section 49 (1) of the Chhattisgarh VAT Act and the liability was partly reduced by order dated 25-9-2013. Thereafter, under Section 49 (3) of the Chhattisgarh VAT Act, suo motu revision case was registered against the petitioners on 14-7-2015 and notices were issued to the petitioners for his appearance on 18-8-2015. Thereafter, again notice was issued under Rule 61 of the Chhattisgarh Value Added Tax Rules, 2006 for his appearance on 17-11-2016. The second pre-revision notice was challenged in W.P.(T)No.17/2017 but....
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.... submit that the order passed on 28-11-2016 is an appealable order under Section 49 (4) of the Chhattisgarh VAT Act and the petitioners having not raised all such plea before the Additional Commissioner cannot be permitted to raise this plea before this Court for the first time. Therefore, the writ petitions deserve to be dismissed. 7. I have heard learned counsel for the parties and also considered their rival submissions and gone through the record with utmost circumspection. 8. In order to appreciate the arguments advanced by counsel for the parties, it would be appropriate to refer Section 49 (3) of the Chhattisgarh VAT Act which reads as under: - "Section 49 : Power of revision by Commissioner (3) The commissioner may on his own motion or on information received call for and examine the record of any proceeding under this Act if he considers that any order passed therein by any person appointed under section 3 to assist him including any officer to whom he has delegated his powers under subsection (1) is erroneous in so far as it is prejudicial to the interest of the revenue, and he may, after giving the dealer or person a reasonable opportunity of being heard, and after m....
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....ck's Law Dictionary, 6th Edition, defines the words "initiate" and "initiative" as under: - "Initiate: Commence; start; originate; introduce; inchoate. Curtesy initiate is the interest which a husband has in the wife's lands after a child is born who may inherit, but before the wife dies. To propose for approval - as schedule of rates. Idaho Power Co. v. Thompson, D.C. Idaho, 19 F. 2d 547, 579. Initiative: An electoral process whereby designated percentages of the electorate may initiate legislative or constitutional changes through the filing of formal petitions to be acted on by the legislature or the total electorate. The power of the people to propose bills and laws, and to enact or reject them at the polls, independent of legislative assembly. Hughes v. Bryan, Okl., 425 P. 2d 952, 954. Not all state constitutions provide for initiative." 13. Thus, the word "initiation" of suo motu revision as stated in proviso (a) to Section 49 (3) of the Act, 2005 has a definite connotation. Initiation of revisional proceeding is the time when the revisional authority applies its mind to the facts / materials on record and decides to direct issuance of notice in accordance with Rul....
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....in a period of one year from the date on which the contempt is alleged to have been committed." 16. Therefore, in the considered opinion of the Court what is required and condition precedent for initiation of proceeding by invoking Section 49 (3) of the Chhattisgarh Value Added Tax, 2005, would be initiation of proceeding under Section 49 (3) of the Act, 2005 and initiation can be done only when the revisional authority applies its mind to the facts of the case of his own motion or on the information received. Once there is application of mind by the revisional authority for suo motu proceeding or on the basis of the information received and he decides to issue notice as contemplated in Rule 61 of the Chhattisgarh Valued Added Tax Rules, 2006, then the exercise of initiation is complete and initiation cannot be said to be made only when the notice is received under Rule 61 by the assessee. 17. Once the proceeding is initiated by the revisional authority / Commissioner under Section 49 (3) of the Chhattisgarh VAT Act by applying its mind and he directs issuance of notice, then further duty imposed by the legislature under Section 49 (3) is to pass the order enhancing, modifying or....
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....ction (1) or sub-section (2) after the expiry of one year from the date of the decision or order of the adjudicating authority", held that if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor and observed thereunder in paragraphs 12 and 13 as under: - "12. It may be seen, therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus panetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose righ....
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....nd proviso places a limitation on the powers of the Registrar. It appears to us that the obvious intention of the legislature was that once the period of three months stipulated expires, the Registrar becomes functus officio and his power to accord approval or disapproval to the resolution passed by the society for expulsion of a member under sub-section (1) of Section 36 of the Act lapses. The District Registrar therefore had no jurisdiction to set aside the resolution passed by the appellant-society under subsection (1) of Section 36 for the expulsion of respondent 1 from the primary membership of the society after the expiry of a period of three months from October 6, 1982 i.e. the date of submission of the resolution. ..." 24. A Division Bench of the Gujarat High Court in the matter of M/s. S.K. Industries v. State of Gujarat (Special Civil Application No.8270/2015 decided on 2-9-2016) while considering the provisions of Section 67 of the Gujarat Sales Tax Act, which provides revision by the Commissioner of his own motion within three years or on application made to him within one year, and considering the revisional provision in which the Commissioner may pass an order within....
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....xpired. If this is taken into account, then the notice which was served upon the petitioner in Form No. XII on 29-10-1952 was within three 'calendar years' from the date of the expiry of the assessment order. ..." Bhutt, J, in his separate but concurring opinion observed as under: - "18. In 1956-7 STC 623 (Nag) (A), to which I was a party, it was not disputed that a calendar year only meant 12 calendar months. As the term 'calendar year' has not been defined either in the Sales Tax Act or the General Clauses Act, it is to be understood in its ordinary, dictionary meaning. It is, therefore, a period of 365 or 366 days, as the case may be, which begins from the 1st day of January and ends on the 31st day of December. The question, however, is how a calendar year should be computed from a day other than the 1st day of January. There is no prescribed method of calculating it in such a case. Therefore, the dictionary meaning has to be wholly incorporated in S. 11 (5) of the Sales Tax Act to determine the date when the three calendar years would expire. In this manner, the notice in question would be found to be within time under the amended section." 27. However, lea....