Hegde, J. - (1.) This appeal by special leave arises from the decision of the Madhya Pradesh High Court in a reference under Section 44 of the Madhya Pradesh Sales Tax Act, 1959. The reference was made by the Board of Revenue. After stating the case, the Board of Revenue referred the following question to the High Court for its opinion."Whether on the facts and circumstances of the case the Commissioner of Sales Tax acted illegally in exercising his powers of revision under Section 39 (2) of the Madhya Pradesh General Sales Tax Act, 1958 in respect of the assessment order dated 28-12-1961 which was passed in respect of the returns submitted on 30-1-1958 and 17-6-1958 and on the basis of the notice in form XI issued on 29-8-1961 -
(2.) The High Court answered that question in the affirmative and in favour of the assessee. Aggrieved by that order, the Commissioner of Sales Tax , Madhya Pradesh has come in appeal to this Court.
(3.) The assessee, M/s. Amarnath Ajit Kumar was a registered dealer under the Madhya Bharat Sales Tax Act, Samv. 2007, For the period from July 1, 1957 to 31st March, 1958 the period with which we are concerned in this appeal, the assessee submitted its return for the second and third quarters on January 30, 1958 and for the fourth quarter on 17th June 1958. These returns were made under Section 9 (3) of the Central Sales Tax Act, 1956. The sales tax concerned in the present case was that leviable under the Central Sales Tax Act, 1956. But the procedure to be adopted in the matter of assessment and collection was that prescribed in the Madhya Bharat Sales Tax Act, Samv. 2007. The Madhya Bharat Act was repealed by the Madhya Pradesh General Sales Tax Act, 1959, which came into force on April 1, 1959. Thereafter the Assistant Commissioner of Sales Tax, issued a notice in form XI of the Madhya Pradesh Sales Tax (Central) Rules, 1959 on August 29, 1961. That Officer passed the assessment order on November 28, 1961. On October 30, 1964, the Commissioner of Sales Tax initiated proceedings under Sect. 39 (2) of M. P. Sales Tax Act, 1959 for revising the assessment made. After notice to the dealer the Commissioner on April 15, 1965 revised the assessment and enhanced the same by a sum of Rupees 993.06 paise. The assessee's appeal to the Board of Revenue was dismissed on June 20, 1966. Both before the Commissioner as well as the Board of Revenue, the assessee contended that as the assessment related to the period when Madhya Bharat Sales Tax Act, Samv. 2007 was in force, the revision of that assessment is governed by Section 12 (1) of that Act and not Section 39 (2) of the Madhya Pradesh Act, 1959. It was urged on its behalf that under the Madhya Bharat Act, the Commissioner could not have revised the order of assessment after the expiry of two years after the assessment was made. Hence the Commissioner was not competent to revise the assessment. The Commissioner as well as the Board of Revenue rejected that contention. They came to the conclusion that it was open to the Commissioner to take action under Sec. 39 (2) of the M. P. General Sales Tax Act, 1959 in the matter of revising the assessment. The High Court did not agree with that view. It held that in view of Section 52 of the 1959 Act, the governing provision in the matter of revising the assessment was Section 12 (1) of the Madhya Bharat Act.;