S.N.P.Singh, A.C.J. - (1.) At the instance of the Commissioner of Commercial Taxes, Bihar, Patna, the Commercial Taxes Tribunal, Bihar, has stated a case and made a reference under Section 25(1) of the Bihar Sales Tax Act, 1947 (Act 19 of 1947), hereinafter to be called the "Act", for decision of the following question of law: Whether, in the facts and circumstances of the case, the order of assessment dated 30th July, 1962, had merged in the order dated 11th January, 1984, passed by the Board of Revenue ?
(2.) M/s. Rameshwar Das Pannalal was a registered dealer under the Act and it submitted returns for the years 1957-58 and 1958-59. It claimed deductions for sales worth Rs. 12,37,268 to three registered dealers, namely, Jamuna Stores, Kailash Stores and Ganesh Stores, during the year 1957-58 and for sales worth Rs. 7,69,104 to Kailash Stores during the year 1958-59, on the basis of declarations furnished by them. The assessing officer passed orders dated 30th July, 1962, allowing the aforesaid claim o! deductions of the assessee. The assessee, however, filed appeals against the orders of assessment and it challenged in those appeals certain enhancements made by the assessing officer as also the disallowance of certain other claims. The Deputy Commissioner of Commercial Taxes, who heard the appeals, modified the orders of assessment by a common order dated 3rd May, 1963. The assessee thereupon filed two revisional applications before the Board of Revenue challenging the appellate order. The Board of Revenue by a common order dated 11th January, 1964, gave relief to the assessee by knocking off the enhancements made in the gross turnovers for both the years and remanded the cases for fresh examination of the claims of the assessee regarding certain deductions from the gross turnover.
(3.) It appears that the Board of Revenue in a different case, viz., in the revisional application filed by Rohtas Industries Ltd., had on 2nd November, 1962, rejected similar claims for sales to the aforesaid three registered dealers, namely, Jamuna Stores, Kailash Stores and Ganesh Stores. It further appears that subsequently also the Commercial Taxes Tribunal in a different case, viz., in Revision Case No. 12 of 1964, disposed of on 11th May, 1965, passed an order declaring the aforesaid three registered dealers as fictitious. The Commissioner of Commercial Taxes, Bihar, thereafter issued notice to the assessee on 17th September, 1965, for suo motu revising the orders of assessment dated 30th July, 1962. The assessee appeared before the Commissioner and showed cause on 17th January, 1966. In the show cause the assessee raised a number of grounds, one of the grounds being that the Commissioner had no jurisdiction to exercise suo motu power of revision. The learned Commissioner of Commercial Taxes decided that question as the preliminary issue and by his order dated 26th July, 1966, he overruled the preliminary objection and decided to proceed with the suo motu revision on merits. Being aggrieved by and dissatisfied with the order of the Commissioner, the assessee filed an application in revision before the Commercial Taxes Tribunal which was registered as Revision Case No. 217 of 1966. Before the Tribunal the following three points were urged on behalf of the assessee: (1) That the orders of assessment dated 30th July, 1962, had become non-existent, having been superseded by the order of the Board of Revenue. (2) That the orders of assessment dated 30th July, 1962, had merged in the order of the Board of Revenue, which became the operative order and, as such, the Commissioner of Commercial Taxes had no jurisdiction to revise the assessment orders dated 30th July, 1962; and (3) that the suo motu revision was barred by the principles of constructive res judicata. It was urged on behalf of the revenue that the revisional application filed by the assessee before the Tribunal was not maintainable as no final order had been passed by the Commissioner while exercising suo motu power of revision. The Tribunal by its order dated 19th November, 1966, held that under Rule 36(5)(a) of the Bihar Sales Tax Rules, 1949, the Tribunal can suo motu revise any order passed by the Commissioner which includes interlocutory orders passed by him. The Tribunal further held that the entire order of assessment dated 30th July, 1962, had merged in the order dated 11th January, 1964, passed by the Board of Revenue and, as such, the Commissioner had no jurisdiction to suo motu revise the assessment orders dated 30th July, 1962. The Tribunal thought it unnecessary to give any finding on the question whether the revisional application filed by the assessee was barred by the principles of constructive res judicata. The Commissioner of Commercial Taxes thereupon moved the Tribunal for stating a case under Section 25(1) of the Act and referring the aforesaid question and some other questions to this Court. The Tribunal has, therefore, stated a case and made a reference for decision of only one question which has already been stated.;