- (1.) THE petitioner is a firm of building contractors carrying on the business of construction work in Delhi. During the year 1954-55 the petitioner was registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi. The petitioner deposited a sum of Rs. 9,639 as sales tax for the year 1954-55 along with one consolidated return. By order dated 31st January, 1956, the Assessing Authority assessed the petitioner to a sales tax of Rs. 10,211-3-0 and also levied a penalty of Rs. 400 for not depositing the tax due along with the return. The petitioner's appeal was rejected on 20th July, 1956, and aggrieved by the said order he filed a revision before the Commissioner of Sales Tax inter alia on the ground that the petitioner was not a dealer under the Act and, therefore, not liable to sales tax. By order dated 21st December, 1956, the Commissioner of Sales Tax allowed the revision and quashed the assessment. He, however, remanded the matter to the Assessing Authority with a direction to take steps to cancel the registration certificate of the dealer after collecting from it the tax saved by making tax-free purchases on the basis of the registration certificate. In Mithan Lal v. State of Delhi A. I. R. 1958 S. C. 682 the Supreme Court decided that in Delhi, sales tax could be validly levied on the transfer of goods involved in building contracts. It appears that it was in view of this decision that the petitioner was served with a notice by the Commissioner of Sales Tax, Delhi, being notice dated 18th March, 1959, calling upon the petitioner to show cause why the assessment order dated 21st December, 1956, be not reviewed. The validity of this notice has been impugned before me and two points have been agitated in support of the petition: (1) In view of Section 11 (2a) of the Act no order of assessment can be made after the expiry of four years and, therefore the order dated 21st December, 1956, cannot be reviewed; and (2) the Assessing Authority having made an order in pursuance of the remand by the Commissioner, the Commissioner's order cannot be reviewed now.
(2.) IN support of the first contention reliance has been placed on State of Orissa v. Debaki Debi and Ors. [1964] 15 S. T. C. 153. This was a case under the Orissa Sales Tax Act, 1947. The second proviso to Section 12 (6) of the Orissa Act is in the following terms : Provided further that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than thirty-six months from the expiry of such period.
(3.) THE impugned orders in State of Orissa's case, ([1964] 15 S. T. C. 153) were made by the Collector of Sales Tax in purported exercise of power of revision under Section 23 (3), which is in the following terms : (3) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Collector may, upon application or of his own motion, revise any order passed under this Act or the rules thereunder by a person appointed under Section 3 to assist him, and, subject as aforesaid, the Revenue Commissioner may, in like manner, revise any order passed by the Collector.;