Debiprosad Pal, J. - (1.) The petitioner is a public limited company and deals in paper containers which are sold mainly to bulk consumers, majority of whom are registered dealers under the Act. The petitioner also is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act). For the period 1st August, 1961, to 31st July, 1962, the petitioner claims that its gross turnover amounted to Rs. 4,07,167.37 and taxable turnover was Rs. 1,00,990.00. The tax payable on the basis of the petitioner's figures amounted to Rs. 5,049.50 and a sum of Rs. 5,125.25 was alleged to have been paid by it. For the said assessment year, the petitioner produced before the Commercial Tax Officer, being respondent No. 2, bills prepared by the Calcutta office, profit and loss account and the balance sheet. As respondent No. 2 desired to examine all the books of accounts of the petitioner because of certain alleged discrepancies between the return figures and the figures appearing from the profit and loss account, the petitioner prayed for adjournment of the date of hearing on the ground that all its books were not made available from New Delhi and also that the petitioner's accountant was indisposed. It is alleged that in spite of the said prayer made by a letter dated 3rd June, 1965, an ex parte assessment was made on that date computing the gross turnover at Rs. 6,40,000.00 and taxable turnover at Rs. 3,70,431.10. The tax assessed to be payable was determined at Rs. 18,521.25. The petitioner's case is that he did not receive any intimation of the said assessment and the additional demand until 20th December, 1966, when a certificate under the Public Demands Recovery Act was served upon the petitioner. As the period within which an appeal could be preferred under the Act expired long ago, the petitioner made an application before the Assistant Commissioner, Commercial Taxes, West Bengal, North Circle, being respondent No. 1, under Section 20(3) of the Act read with Rule 80(5) of the Bengal Sales Tax Rules (hereinafter referred to as the Rules), invoking the power of the Assistant Commissioner to revise suo motu the assessment made by the Commercial Tax Officer. Respondent No. 1 by an order dated 31st October, 1967, held that the instant revision was governed by Section 20(3) of the Act read with Rule 80(2) of the Rules and as the said application was not filed within 60 days from the date of the assessment order and as no sufficient cause for the belated presentation of the revision was shown, the said application was rejected as being time-barred. Respondent No. 1 also was of the view that there was no justification for revising the impugned assessment suo motu. Being aggrieved by the said order the petitioner made this present application and obtained a rule nisi.
(2.) The main contention urged on behalf of the petitioner before me is that the application made by it before respondent No. 1 was to request him to exercise his power of revision suo motu and the time for such revision of his own motion is four years from the date of the assessment. As, admittedly, four years had not expired from the date of the assessment order, respondent No. 1 erred in holding that the application was time-barred. It is further submitted that respondent No. 1 proceeded upon an erroneous view as if this application has been made under Section 20(3) of the Act read with Rule 80(2) of the Rules and hence the period within which an application for revision to be made by a dealer has been erroneously applied.
(3.) An affidavit has been filed on behalf of respondents Nos. 1 to 3. The counsel for the respondents contended that when the revisional power is invoked under Section 20(3) of the Act by way of an application by the dealer, Rule 80(2) will be attracted and the time within which such an application for revision can be entertained is 60 days from the date of the order. As, admittedly, the said period has expired, the application has been rightly considered by respondent No. 1 to be time-barred. It has also been submitted that under the second proviso to Section 20(3) of the Act, no application for revision lies in respect of any assessment if an appeal lies under Section 20(1) in respect of such an assessment. As the petitioner has not availed itself of the right of appeal provided under Section 20(1) of the Act, it is not entitled to make an application for revision. It appears from the application filed before respondent No. 1 as also from the order passed by him that respondent No. 1 was moved under Section 20(3) of the Act read with Rule 80(5) of the Rules, Rule 80(5) of the Rules applies only when the Commissioner exercises the power of revision of his own motion and not in a case where a dealer makes an application for revision. It is, therefore, the admitted case that respondent No. 1 was requested by the application to exercise his power of revision suo motu. The question therefore arises as to whether such revisional power can be exercised suo motu on the basis of the facts and the materials brought before the revising authority at the instance of a dealer. The submission on behalf of the respondents was that a suo motu exercise of the power of revision cannot be made at the request of a dealer.;