- (1.) THESE four writ petitions (C. W. No. 1232 of 1965, Messrs. Hari Chand Rattan chand and Co. v. The Deputy Excise and Taxation Commissioner, C. W. No. 1686 of 1965, Messrs. Kashmiri Lal Kasturi Lal and Co. v. The Deputy Excise and taxation Commissioner, C. W. No. 539 of 1966, Messrs. Raj Brothers v. Asst. Excise and Taxation Commr. and C. W. No. 1819 of 1966, Messrs. Highway Motors v. Chief Enforcement Officer, Punjab, Patiala) came up for hearing before my learned brother Sarkaria, J. , on April 1, 1968, and it was urged that a common question of law had arisen as to whether the Excise and Taxation Commissioner is competent under Section 21 (1) of the Punjab General Sales Tax Act, 1948, hereinafter called the Act, to reopen an assessment order after the expiry of the period prescribed in Sub-section (6) of Section 11 of that Act. It was pointed out to the learned Judge that this very question arose in National Rayon Corporation ltd. v. Addl. Asst. Excise and Taxation Commr. , Punjab, 15 STC 746 = (AIR 1965 punj 62), and the view taken by the Division Bench in that case was that the legislature did not intend to fetter the power of the Commissioner under Section 21 by any rule of limitation and, therefore, left it to the Commissioner's discretion to exercise his power at any time. The correctness of this decision was doubted in view of the decision of their Lordships of the Supreme Court in State of Orissa v. Debaki Debi, 15 STC 153 = (AIR 1964 SC 1413), and it was pleaded that the division Bench judgment of this Court required reconsideration. In view of the joint submission of the learned counsel for both the parties, the learned Judge directed that the papers in all these four cases be placed before my Lord the Chief justice for constituting a larger Bench to reconsider the aforesaid Division Bench judgment and to determine the question: "whether the jurisdiction of the commissioner under Section 21 (1) of the Punjab General Sales Tax Act, 1948, is subject to the period of limitation prescribed in Sub-section (6) of Section 11 of the Act". It is admitted by both the learned counsel that instead of Sub-section (6)of Section 11 it should be Section 11-A so that the question referred will read as under:- "whether the jurisdiction of the Commissioner under Section 21 (1) of the Punjab General Sales Tax Act, 1948, is subject to the period of limitation prescribed in Section 11-A of the Act. "
(2.) THIS is how these cases have been placed before us for deciding the point of law referred.
(3.) THIS precise point had arisen in an earlier Division Bench judgment of this Court in Narain Singh Mohinder Singh v. State of Punjab, (1963) 14 STC 610 (Punjab ). The judgment in that case was delivered by Mehar Singh, J. (as my Lord the Chief justice then was) with which my learned brother Shamsher Bahadur, J. agreed and it was held as under:- "in so far as the first question is concerned it is obvious that the provisions of Section 11-A of the Act have no bearing on the revisional powers of the Commissioner under Sub-section (1) of Section 21 of the act for what the Commissioner does in exercising revisional powers is to satisfy himself as to the legality or pro- priety of the record of any proceedings before or disposed of by the Assessing Authority or the Appellate Authority as the case may be, and he does not take proceedings for reassessment. Apart from this. Section 11-A applies only to an Assessing Authority and not to a Commissioner. Consequently section 11-A of the Act has no bearing so far as the revisional powers of the Commissioner under Section 21 (1) of the Act are concerned and it follows that Section 11-A cannot possibly limit the revisional powers of the Commissioner under Section 21 (1 ). The obvious answer to the question is that the Commissioner is not bound to take into consideration the provisions of Section 11-A when exercising his revisional powers under Section 21 (1) of the Act. " This decision was delivered on July 17, 1962, and when this point of law was argued before the other Division Bench deciding the case of National Rayon corporation Limited, 15 STC 746 = (AIR 1965 Punj 62) (Supra) on July 16, 1964, this judgment does not seem to have been brought to the notice of the learned judges by the learned counsel for either of the parties. The judgment in that case was delivered by Dulat, J. , with whom Pandit, J. agreed and it was held as under:- "it is obvious that if the Legislature Intended to limit the power of the commissioner under Section 21 to a period of three years after the close of an assessment year or even after the disposal of the proceedings by an Assessing Authority, it could, and in the circumstances almost certainly would, have said so in Section 21, for the Legislature was aware that a period of limitation had for purposes of reassessment by an assessing Authority been fixed in Section 11-A. The conclusion, in my opinion, must be that the Legislature did not intend to fetter the power of the Commissioner under Section 21 by any rule of limitation and, therefore, left it to the Commissioner's discretion to exercise his power at any time. Mr. Bhagirath Dass says that it is improbable that such power unlimited in time could have been entrusted to the Commissioner, but I can find nothing improbable about it, and the argument that the commissioner may decide to reopen a matter settled twenty or thirty years previously, does not lead anywhere. The power of revision mentioned in Section 21 is altogether separate from and unconnected with the power of reassessment by an Assessing Authority under Section 11-A of the East Punjab General Sales Tax Act. In my opinion, therefore, the learned single Judge was right in holding that the Additional assistant Excise and Taxation Commissioner had authority to revise the previous orders made by the Assessing Authority in the present case". ;