TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 597
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....c. Show-cause notice dated 18th March, 2025 (Annexure-1) issued by the Additional Commissioner of CT & GST, CT & GST Territorial Range, Cuttack-I, Cuttack under Section 23(4) of the Odisha Sales Tax Act, 1947 (for convenience, "the OST Act") in connection with the assessment Order dated 4th June, 2022 passed by the Sales Tax Officer, CT & GST Circle, Cuttack-I, Cuttack under Section 12(5) of the OST Act pertaining to the assessment year 1996-97 (1st December, 1996 to 31st March, 1997). Facts narrated in the writ petition: 2. The Petitioner, Government of India Undertaking, was subjected to assessment pertaining to Assessment Year 1996-97 (1st December, 1996 to 31st March, 1997) under Section 12(5) of the OST Act by the Sales Tax Officer vide order dated 2nd July, 2002. The appeal directed against said assessment order culminated in confirmation and thereafter by order dated 30th September, 2003 said appellate order got affirmed in second appeal by the Odisha Sales Tax Tribunal vide order dated 4th November, 2019. In further proceeding thereafter under Section 24 of the OST Act, this Court, while disposing of the revision petition, being STREV No.19 of 2020, vide Order dated 2....
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.... entertain the writ jurisdiction to address the issue raised herein. 5. Mr. Sunil Mishra, learned Standing Counsel appearing for the CT and GST Organisation vehemently opposed entertainment of writ petition against the order passed in suo motu Revision. Referring to provisions contained in Section 3 of the OST Act, 1947 and Rule 3 of the OST Rules, 1947 he sought to advance argument that as the Additional Commissioner of Sales Tax, enumerated as one of the authorities to assist the Commissioner, being delegated to exercise power of suo motu revision by the Commissioner in exercise of power under Section 17 of the OST Act, having invoked the jurisdiction aptly under Section 23(4)(a), by entertaining the writ petition challenging his order would tantamount to rendering the alternative remedy provided under Section 23(4)(c) of the OST Act otiose or redundant. 5.1. Having thus urged, he argued that when alternative remedy is provided under the statute, the petitioner need not be permitted to agitate the issue regarding twin conditions laid down in Rule 80 of the OST Rules in the instant writ petition. Such an issue can very well be dealt with by the appellate authority along with....
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.... to the Commissioner for revision of an order passed by an Assistant Sales Tax Officer or a Sales Tax Officer, or an Assistant Commissioner, or a Deputy Commissioner or a Joint Commissioner as the case may be, may be filed by the dealer within thirty days from the date of receipt by him of such order: Provided that no such application shall be entertained by the Commissioner in respect of any order against which the applicant has a right of appeal under sub-section (1) or sub-section (3) of Section 23: Provided further that the Commissioner may admit an application for revision received after the said period if it is shown to his satisfaction that the appellant had reasonable cause for not preferring the application in time. 80. Revision by the Commissioner suo motu.- The Commissioner may on his own motion at any time within three years from the date of passing of any order by the Sales Tax Officer or Assistant Commissioner or within two years from the date of passing of any order by the Additional Commissioner, Special Additional Commissioner or Joint Commissioner or Deputy Commissioner, as the case may be, call for records of the proceedings in....
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....he administrative control of the Commissioner of Sales Tax." 6.5. Power under Section 23(4)(a) of the OST Act as delegated on the Additional Commissioner: "Office of the Commissioner of Commercial Taxes, Odisha Order Dated Cuttack, the 18th May, 1963 No. 12358-CT.- In exercise of the powers conferred by Section 17 read with clause (d) of sub-section (4) of Section 23 of the Odisha Sales Tax Act, 1947 (Odisha Act 14 of 1947), I, S.M.H. Burney, I.A.S., Commissioner of Sales Tax, Odisha, with the prior approval of the State Government do hereby delegate the powers exercisable by me under clause (a) of sub-section (4) of Section 23 of the said Act and Rule 79 of the Odisha Sales Tax Rules, 1947, to the Additional Commissioner of Sales Tax and direct that the powers and duties under the said provisions shall be exercised and discharged by him. S.M.H. Burney Commissioner of Sales Tax, Odisha." Discussions: 7. It emanates from conjoint reading of the provisions referred to hereinabove that the Additional Commissioner is delegated with the power of revision to invoke Section 23(4)(a) of the OST Act which includes "on his own motion". If the order in Revisio....
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....ude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not. 8.4. In Union of India Vrs. Maj. I.C. Lala, AIR 1973 SC 2204 = (1973) 3 SCR 818, the Supreme Court of India held, "The words "notwithstanding anything contained in the Code of Criminal Procedure" found at the beginning of Section 5A(1) merely carve out a limited exemption from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who are competent to investigate into offences mentioned in the section and to arrest without a warrant. It does not mean that the whole of the Code of Criminal Procedure, including Schedule thereof, is made inapplicable. Under Section 5 of the Code of ....
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....ive part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules." 8.8. In A.G. Varadarajulu Vrs. State of Tamil Nadu, (1998) 4 SCC 231, it has been held: "It is well settled that while dealing with a non-obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section." 8.9. In Vishin N. Kanchandani Vrs. Vidya Lachmandas Khanchandani, AIR 2000 SC 2747, the Supreme Court held that, ....
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.....P. Singh Chapter V, Synopsis IV at pages 318 & 319]. 8.13. When two or more laws or provisions operate in the same field and each contains a non-obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpretation, no settled principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non-obstante clause. Two provisions in the same Act each containing a non-obstante clause, requires a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper consideration of giving effect to the object and purpose of two provisions and the language employed in each. [See, Shri Swaran Singh Vrs. Shri Kasturi Lal, (1977) 1 SCC 750]. 8.14. In view of the non-obstante clause contained in clause (d) of sub-section (4) of Section 23 of the OST Act, it is ex facie that no second or further revision lies before the Commissioner, if the Additional Commissioner once exercises his delegated power under Section 23(4)(a) of the OST Act. 8.1....
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....three years from the date of passing of the order and in the case of an order passed by the Additional Commissioner, Special Additional Commissioner or Assistant Commissioner, as the case may be, within two years from the date of passing of the order. The revisional jurisdiction can be exercised if the Commissioner, after calling for the records of the proceedings in which the order sought to be revised was passed, considers that the order is erroneous insofar as it is prejudicial to the interest of the Revenue. Where these jurisdictional facts are present to invoke the revisional power, the Commissioner has to provide the dealer or a person affected thereby an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, may revise any such order. There are two situations in which an order in question cannot be revised and they are: (1) where an appeal against the order is pending before the Appellate Authority under Section 23, or (2) where the time-limit for filing an appeal under Section 23 has not expired. The same conditions will govern the exercise of the revisional power by the delegatee of the Commissioner under Not....
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....T, dated 03.08.1963, in the instant case, power under the same provision, i.e., Section 23(4)(a) of the OST Act has been delegated to Additional Commissioner vide Notification No. 12358-CT, dated 18.05.1963. However, both the authorities, namely the Assistant Commissioner and the Additional Commissioner, are enumerated under Section 3 read with Rule 3 to assist the Commissioner. Thus, apparently the Additional Commissioner having passed the order in the capacity of delegated authority to invoke power of revision, the Commissioner cannot invoke the same power again. Therefore, the appeal against the order passed in revision by the Additional Commissioner would lay before the Commissioner under Section 23(4)(c)(ii) of the OST Act. 9.2. In J.C. Budharaja Vrs. State of Odisha, (2000) 118 STC 140 = 1999 SCC OnLine Ori 298, it has been observed as follows: "These two appeals under Section 23(4)(c)(i) of the Orissa Sales Tax Act, 1947 (in short, "the Act") involve the question whether the Commissioner of Sales Tax (in short, "the Commissioner") can revise an order passed by the Assistant Commissioner of Sales Tax in exercise of powers of revision under Rule 80 of the Orissa Sa....
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....rdinate or co-ordinate authority shall again revise the order passed by that authority. An identical question arose for consideration before the Gujarat High Court in a case reported in (1982) 50 STC 322 (Ashwin Industries Vrs. Deputy Commissioner of Sales Tax, Baroda). According to Section 67(1) of the Gujarat Sales Tax Act, the Commissioner has power of revision of any order passed by any officer appointed to assist him on his own motion. According to Section 27(2) of the aforesaid Act, Deputy Commissioners, Assistant Commissioners and Sales Tax Officers were appointed to assist the Commissioner. According to sub-section (5) thereof, the Commissioner is authorised to delegate powers in favour of a Deputy Commissioner and after such delegation the Deputy Commissioner is authorised to perform all functions of the Commissioner delegated to him. According to sub-section (7) thereof, the State Government can delegate functions of the Commissioner to Additional Commissioners. In view of the aforesaid provisions, it was held that suo motu power of revision delegated to the Additional Commissioner or the Deputy Commissioner can be exercised by them and their orders passed in rev....
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....rs. State of Punjab AIR 1963 SC 1503. In general, a delegation of power does not imply parting with authority. The delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate. [See Battelley Vrs. Finsbury Borough Council, (1958) 56 LCR 165)]. 9. In Corpus Juris Secundum, Volume 26, "delegate" has been described as follows: 'As a noun, a person sent and empowered to act for another, one deputed to represent another in a more popular but less accurate sense, a regularly selected member of a regular party convention. As a verb, in its general sense and as generally used, the term does not imply, or point to, a giving up of authority, but rather the conferring authority upon some one else. At common law, it is the transfer of authority by one person to another, the act of making or commissioning a delegate. Expression 'delegation of authority or power' is a term which like the word 'delegate' does not imply a parting with powers by the person who grants the delegation, but points ra....
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....delegated, i.e., the power of hearing revision applications under Section 23(4)(a) read with Rule 79. That power has already been exercised by the delegatee. The Commissioner intends to exercise the power of revision under Rule 80. Exercise of power under Rule 80 is not same as exercised by him under Rule 79. It is to be noted here that the Legislature in its wisdom put a seal of finality on all orders passed under sub-section (4) of Section 23 of the Act. 11. Under clause (c) of sub-section (4) of Section 23 the dealer or person, as the case may be, the State Government aggrieved by any order passed by the Commissioner on his own motion may, within sixty days from the date of receipt of such order, prefer an appeal. If the order is passed by the Commissioner, the appeal is to be filed before the High Court, and if the order is passed by any authority subordinate to the Commissioner, to the Commissioner. It is, however, to be noted that the right of appeal has been conferred in respect of an order passed by the Commissioner on his own motion. The expression "Commissioner" as defined in the Rules means the Commissioner of Sales Tax and includes any officer to whom the Commissione....
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.... could not re-initiate the proceeding invoking said provision. In view of clause (d) to sub-section (4) of Section 23, it is untrammelled position that the Commissioner is restrained from delegating the power of appeal envisaged under item (ii) of clause (c) of sub-section (4) of Section 23 to subordinate authorities enumerated under Rule 3 read with Section 3, but for certain condition. Therefore, necessary corollary would be that the Commissioner has the jurisdiction to be appellate authority against the order of revision passed by any other person appointed under Section 3(3) of the OST Act read with Rule 3 of the OST Rules. 9.4. The petitioner, though is aware of the above legal position, has filed the present writ petition with a view to drag on the proceedings on the one hand and to postpone the payment of tax for a considerable period. 10. Since the Commissioner has delegated the power of revision under Section 23(4)(a) of the OST Act, whether the Additional Commissioner has seemly exercised his power of revision as delegated coupled with the question whether twin conditions as envisaged under Rule 80 of the OST Rules are satisfied, are the domain of the appellate auth....
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.... a Court of limited jurisdiction." 10.3. In Carona Ltd. Vrs. Parvathy Swaminathan and Sons (2007) 8 SCC 559, it has been reiterated as follows: "27. Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. *** 29. But there is distinction between 'jurisdictional fact' and 'adjudicatory fact' which cannot be ignored. An 'adjudicatory fact' is a 'fact in issue' and can be determined by a Court, Tribunal or Authority on 'merits', on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish 'juri....
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....n essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required to, has jurisdiction to determine. The strength of this theory of jurisdiction lies in its logical consistency. But there are other cases where Parliament when it empowers an inferior Tribunal to enquire into certain facts intended to demarcate two areas of enquiry, the Tribunal's findings within one area being conclusive and within the other area impeachable. The jurisdiction of an inferior Tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the Tribunal has to try. The Tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a Tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the Tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decisio....
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....t orders are not in the nature of judicial proceeding. Irregular assessment orders are curable but assessment orders passed without jurisdiction are null and void. The Supreme Court observed as under: 'All irregular or erroneous or even illegal orders cannot be held to be null and void, as there is a fine distinction between orders which are null and void and orders which are irregular, wrong or illegal. Where an authority makes an order which lacks inherent jurisdiction, such an order would be without jurisdiction, null and void ab initio, as the defect of jurisdiction of such authority goes to the root of the matter and strikes at his very authority to pass any order and such a defect cannot be cured even by consent of the parties. *** However, exercise of jurisdiction in a wrongful manner cannot result in a nullity4 it is an illegality capable of being cured in duly constituted legal proceedings. Proceedings for assessment under a fiscal statute are not in the nature of judicial proceedings, like proceedings in a suit, inasmuch as the Assessing Officer does not adjudicate on a lis between an assessee and the State, and, therefore, the law on the issue laid down....