A. P. MISRA, J. - (1.) THE Petitioners have filed this petition challenging the validity of the proceedings under section 10-B of the Uttar Pradesh Sales Tax Act for the assessment years 1974-74 and 1974-1975. These were initiated on the basis of the application filed by the Sales Tax Officer before Deputy Commissioner (Executive). The petitioners also challenge the validity of clause (c) of section 10-B(3) of the said Act. However, in the present petition the validity of the aforesaid sub-clause is not pressed. Consequently, the petitioners seek quashing of notices dated September 15, 1982 and September 18, 1982 under section 10-B for the aforesaid assessment years in question.
(2.) IT was relevant that assessment order for the assessment year 1973-74 was passed on September 18, 1976, which is sought to be revised by means of the impugned notice. Similarly for the assessment year 1974-75, the assessment order was passed on September 29, 1976 which is also sought to be revised by means of the impugned notice. In pursuance to the interim order passed by this Court in the present case on September 21, 1982, the Deputy Commissioner (Executive) disposed of the same by means of order dated September 25, 1982 and accepting the objection dropped the proceedings under section 10-B for the assessment year 1973-74. Hence the present petition is confined to the assessment year 1974-75. The question raised is regarding jurisdiction of the authority under section 10-B of the Act. This section deals with revisional power of the Commissioner of Sales Tax. Section 21 deals with cases of escaped assessment, under-assessment, assessed at lower rate, etc. Under section 10-B Commissioner may revise any order passed by any officer subordinate to him for satisfying himself as to the legality or propriety of such order which may include escaped assessment, or any such which he overlooked or including and interpreting, common illegality or impropriety, Commissioner may examine any order for satisfying himself of its legality and propriety. Satisfaction of legality and propriety means whether on facts of thee case and the law and order passed could be said to be legal or proper. No order could be said to be improper or illegal only because different order results on account of materials which were not placed before him. This would be a case of escaped assessment falling under section 21. What Commissioner cannot be done under section 21. Escaped assessment of under-assessment would be cases covered under section 21 of the Act. There may be overlapping of jurisdiction between sections 10-B and and 21. But One thing is clear, the power under section 10-B could be to test the legality or propriety of any order already passed which could only be based on the material and law which existed then. Section 10-B could be said to be in one sense wider than section 21 as under this section the Commissioner may reassess and re-examine the material and the law as was before such authority. Under section 21 reassessment by fresh appraisal of the original order would amount to change of opinion which is not permissible and which would be beyond the jurisdiction of section 21, Relevant section 10-B(1) is quoted hereunder : "The Commissioner of Sales Tax or such other officer not below the rank of Deputy Commissioner of Sales Tax as may be authorised in this behalf by the State Government by notification may call for and examine the record relating to any order (other than an order mentioned in section 10-A) passed by any office subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect thereto as he thinks fit."
(3.) UNDER the aforesaid premise of law the facts in the present case are, an application under section 10-B was filed by one Shri Ram Murati Singh, Sales Tax Officer, Gorakhpur, for initiating proceedings under the said section for the relevant assessment year in question. The said application is annexure 3 to the rejoinder affidavit. That reveals, the Sales Tax Officer has referred to information he came to know after passing the assessment order for the assessment year 1974-75. It is not in dispute, earlier to this application even order under section 21 was passed by him on the basis of the said subsequent information collected from the Income Tax Department. After passing the original assessment order under rule 41(7) of the U.P. Sales Tax Rules, reassessment order under section 21 was passed on September 23, 1977. Another order under section 21 of reassessment for the same assessment year in question was passed on January 29, 1979. Thereafter third notice was served on the petitioner under section 21 by means of order dated August 6, 1979 and the petitioners were again reassessed. This reveals, parallel proceedings are going on both under section 10-B and under section 21 of the Act. Section 263 of the Income-Tax Act, 1922, which is similar to section 10-B of the Sales Tax Act and section 34 of the Income-tax Act, 1922, is for reassessment, which is similar to section 21 and equivalent to sections 147 and 148 of the Income-Tax Act, 1961. In [1979] 118 ITR 447 (Cal.) (Ganga Properties v. Income-Tax Officer) it was held, if after passing of the assessment order certain other material or information has come to the knowledge of the Income-Tax Officer, then he can take proceedings for reassessment under section 34, but no proceedings under section 263 can be initiated by Commissioner of Income-Tax for revising the said order of assessment.;